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Procedural challenges in a fact-finding hearing in wardship proceedings

Date:14 AUG 2018
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Family analysis: The case of M v F and others [2018] EWHC 1720 (Fam) is a reminder that the main issues in the case should be identified and addressed as early as possible in proceedings. Brendan Roche, barrister, of Seven Bedford Row, highlights the procedural issues that arose because the father was a litigant in person, including whether he could cross-examine the mother.

What are the practical implications of this case?

The key lessons from this case are the value of identifying and addressing the issues as early as possible in proceedings, and arrangements that may be put in place as to cross-examination where an alleged perpetrator is a litigant in person.

The respondent father’s application for legal aid was rejected on the basis of his means. This meant that as a litigant in person, the respondent would, in the ordinary course, cross-examine the mother (the applicant) on her allegations. The Master of the Rolls in Re K and H (Private Law: Public Funding) [2015] EWCA Civ 543, [2016] 1 FLR 754, set out in para [52] of the judgment the options available to the court, which has to determine how best to balance the need for the evidence to be heard and tested against the need to protect alleged victims from further harm or abuse.

In his judgment, Williams J said it is crucial that the possibility that a litigant in person, who is the alleged perpetrator and might be cross-examining an alleged victim, is identified and brought to the attention of the court at the earliest possible time so that directions can be given. In this case, the guardian agreed that she would test the evidence of the parties.

The judge joined the children as parties at the second case management hearing before him, considering this appropriate given the complexities of the case, even before the fact-finding had taken place. One reason for this, and for a direction for an early report from the children’s guardian, was to enable swift progress to be made after the fact-finding hearing was concluded.
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What was the background?

This was a fact-finding hearing in a case where the applicant alleged that she had been stranded with one child in Pakistan in August 2017, while the respondent returned to England to care for the other three children of the family. The applicant further alleged that she had been subjected to controlling and abusive behaviour by the respondent, and other members of the paternal family.

The judge excluded the evidence of three of the respondent’s witnesses because their statements were served late, on the second day of the hearing, and the applicant would have found it difficult give instructions and respond.

At the judge’s instigation, after there was an issue over what documents the parents’ immigration solicitor might hold, the immigration solicitor was called to give evidence. She told the court that the mother had initially said the DNA paternity test was wrong, but later had admitted to having an affair. This was very unhelpful evidence to emerge for the first time in the middle of the trial.

The parties requested Urdu/Punjabi interpreters to assist at the trial, but this was too general a request. Interpreters with particular dialect skills were required. The delay in obtaining the right interpreters meant that the maternal grandmother, giving evidence by video-link from Pakistan, was unable to give any useful evidence.

What did the court decide?

Williams J decided that the respondent had indeed stranded the applicant in Pakistan. The child who was left with the applicant in Pakistan was not the respondent’s but was the product of the mother’s infidelity in Pakistan while the respondent was living in England.

The judge found that the respondent could not tolerate the child within the family since she would be a constant source of shame and reminder of the applicant’s breach of their cultural and religious rules. The judge rejected the applicant’s allegations of controlling and abusive behaviour and criticised both parents for prioritising their own needs over those of the children.

Interviewed by Nicola Laver.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial