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CARE PROCEEDINGS: Re H (Care Proceedings: Adjournment) [2006] EWCA Civ 1875

Date:19 DEC 2006

(Court of Appeal; Ward, Rix and Neuberger LJJ; 19 December 2006)

The care proceedings concerned children who had been living in a household with a man charged with a variety of sex offences, including child pornography. He was awaiting trial. There were a number of child witnesses expected to give evidence at the criminal trial whose evidence was considered relevant to the care proceedings. At a very late stage the police objected to use of the evidence of these witnesses in the care proceedings, seeking an adjournment of the care proceedings on the basis that the witnesses, not just the child witnesses, were very fragile, and would be unable to face the ordeal of giving evidence twice. The judge in the care proceedings found that all of the witnesses were relevant, that the child witnesses ought not to be required to give oral evidence, and that an adult witness ought to give evidence, notwithstanding her fragility, but should not be cross examined. The judge went on to adjourn the care proceedings until after the criminal trial.

This had been a confused and confusing hearing. The judge should have dealt first with the issue of whether or not to adjourn the care proceedings. Having concluded that the care proceedings should be adjourned, there had then been no need to rule on the issue of cross-examination. The judge had been entitled to take the case management decision to adjourn, even if the Court of Appeal would have made a different decision in all the circumstances of the case. However, it had been premature to take decisions about witnesses and cross-examination; the matter could be looked at in the light of the developments at the criminal trial.