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Split Hearings in Care Proceedings: a Thing of the Past?

Michael Jones, barrister of 15 Winckley Square Chambers, reviews the recent Court of Appeal judgment in S (A Child) [2014] EWCA Civ 25 and considers its likely consequences.

Michael Jones, barrister, 15 Winckley Square, Preston

Michael Jones, barrister, 15 Winckley Square

There was a time in the not too distant past when split hearings were regularly used in order to allow the court to conduct what was essentially a fact-finding exercise, prior to the court determining welfare issues and disposal at a later, final hearing. Such split hearings were intended to allow the court to adjudicate on any findings sought by the local authority in public law cases, which were seen as essential in relation to ensuring that the threshold criteria within Section 31(2) of the Children Act 1989 were appropriately made out.

Split hearings have become increasingly rare in the public law arena; this is partially due to the President's Guidance on Split Hearings dated May 2010. This guidance was handed down in light of the fact that split hearings were, in the view of the President of the Family Division, taking place when they were not required and were taking up a disproportionate amount of the court's time and resources. The guidance helpfully provides a clear definition of exactly what a split hearing is:

"A split hearing is a hearing divided into two parts, during the first of which the Court makes findings of fact on issues either identified by the parties or the Court, and during the second part of which the Court, based on the findings it has made, decides the case."

In other words, the "fact finding" element in respect of threshold is effectively severed from the welfare element of the proceedings, with the fact-finding being the first limb of the split hearing. The guidance makes clear that a split hearing should only be ordered in the event that the court decides that the case cannot properly be decided without such a hearing. However, even if this is the case, then it does not follow that such a hearing needs to be separated from the substantive hearing; the guidance is very clear that the preference would be for a "composite" final hearing where facts related to threshold and welfare could be dealt with together. 

Reiterating the rationale for split hearings in care proceedings set out by Bracewell J in Re S (Care Proceedings: Split Hearing) [1996] 2FLR 773, the guidance states that cases suitable for split hearings:

"…would likely be cases in which there is a clear and stark issue, such as sexual abuse or physical abuse."

The object of the split hearing was accordingly to prevent delay and the disproportionate use of expert resources. The President notes in his judgment:

"It will be a rare case in which a separate fact finding hearing is necessary."

The guidance applies to both private and public law cases. However, the focus of this article is on split hearings in the context of care proceedings.  IIt is essential to look at the issue of split hearings in the public law context is because of the recent judgment of the Court of Appeal in the case of S (A Child) [2014] EWCA Civ 25. Within this judgment, Lord Justice Ryder sets out further guidance as to the circumstances in which separate fact finding exercises are necessary; perhaps unsurprisingly, Ryder LJ concludes that these hearing should be consigned to certain types of cases, including:

"The most complex medical causation cases where death or very serious medical issues had arisen and where accurate diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is completely inappropriate." (Para 29)

The case in question involved an appeal by the local authority where the subject child, S, received several skull fractures to the rear of her head. The local authority brought its case on the basis that the injury had been caused by two separate blunt impacts to the child's head or by the force occasioned in a bilateral crushing mechanism. It alleged that one of the parents had caused the injury and that the other had failed to protect S from that harm. A split hearing was convened and the trial judge made the finding that S had suffered significant harm in the care of the parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury; the local authority then appealed that conclusion on a number of grounds, namely that in an untranscribed exchange after the judgment, the judge was said to have declined to exclude an accidental cause. The Court of Appeal dismissed each of the four grounds of appeal put forward by the local authority on the basis that they were misconceived. Ryder LJ summarised that:

"He (the judge) did not find that the injury was accidental (which would have been a contradiction in terms) nor did he find that the parents had not deliberately injured the child. The judge cannot be said to have been plainly wrong in the findings he made nor in the inferences he drew or declined to draw and his reasoning was sufficient given that he had the benefit of hearing the oral evidence." (Para 6)

Ryder LJ then went on to address specifically the issue of the split hearing in that particular case, stating that the background problem in cases such as that of S (A Child), is a failure by the parties to identify the key issues which need to be determined by the court and then how those issues should be determined. Ryder LJ was very clear that the split hearing in the case in hand was a wholly inappropriate way of dealing with the necessarily inter-related issues of fact and welfare. 

It is important to note that the court stated explicitly that it is not necessary for the purposes of the threshold criteria to characterise the fact of what happened as negligence, recklessness or in any other way. It is not therefore essential for determining the issue of threshold, for there to be any finding of intent or blame:

"The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of proof which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is actually attributable to the care provided." (Para 21)

This would therefore reinforce the need for greater thought and care to be given to the drafting of threshold documents in cases where a child has sustained an injury; the local authority must be very careful how it pleads its case. A reason that the local authority's appeal was found to be misconceived in S (A Child) was that it had pleaded deliberate infliction by one or other of the parents where the medical evidence had left open the possibility of an accidental cause; the local authority failed to establish the case for deliberate infliction and did not examine any other possibilities sufficiently to allow the judge to make conclusions upon them. In a case where a local authority intends to seek a finding of deliberate infliction of an injury, very close attention will have to be given to the medical evidence available and all possibilities in respect of causation will need to be considered.

A further issue arose when the court considered the term "non-accidental injury" and took the view that such a "colloquial" term was unhelpful at best:

"The term "non-accidental" injury may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a "catch-all" for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and the objective standard of care elements of section 31(2)." (Para 19)

This accordingly brings into question whether local authority threshold documents should really include the term "non-accidental" in respect of injuries to a subject child as the Court of Appeal was clear that the term is a tautology, while the term "accidental injury" was described by Ryder LJ as "an oxymoron that is also unhelpful as a description". What is not in doubt is that the issue for any split hearing to consider is whether or not the threshold is satisfied; the crossing of the threshold for the making of a statutory order is not dependent on whether an injury was deliberately inflicted or borne out of negligence on the part of a parent. 

Having dealt with the substantial appeal in the case, Ryder LJ then went on to deal with the appropriateness of split hearings in general. He was clear that such hearings must be confined to

(i) those cases where there is a stark or discrete issue to be determined and where early determination of such an issue will expedite the determination of whether a statutory order is necessary, and

(ii) complex cases where death or very serious medical issues arise and where accurate medical diagnosis is integral to the future care of the child concerned.

Furthermore, it was emphasised that the court should have regard to the risks associated with convening split hearings; for example the fact that a separate finding of fact hearing may adversely affect the subsequent welfare and proportionality evaluations by the court because memories will fade of the details and nuances of the evidence that may have been given weeks or even months before the final hearing.

A pertinent point for local authorities to bear in mind is that the Court of Appeal was particularly critical of local authorities seeking to justify split hearings in order to enable the undertaking of a social work assessment. In the past, there have often been occasions where the local authority, when bringing its case, has sought findings in order to inform social work risk assessments and long-term care planning; for example, in cases where a child has been injured and the local authority pursues a distinct finding in relation to whether the injury was deliberately inflicted or attributable to a lack of supervision or negligence on the part of the parent, in order to allow it to undertake its social work assessment on the basis of the factual matrix found by the court. Ryder LJ has now made clear that this practice is simply no longer acceptable:

"The oft repeated but erroneous justification for them (split hearings) that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice….In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the Court, that can be done by basing the same on each of the alternative factual scenarios that the Court is being asked to consider." (Paras 29, 30)

Local authorities will now have to be alive to the fact that a separate fact finding exercise cannot be conducted simply in order to inform social work assessment; such assessments should be completed on an "either or basis", taking into account the alternative factual scenarios and how, if at all, the differing factual scenarios would alter any conclusion (a further example of such an approach can be seen in W (Children) [2009] EWCA Civ 644).

To conclude it would now appear that, in light of the judgment in S (A Child), the use of split hearings is likely to become increasingly rare. The following points should be taken from the judgment:

(a) Split hearings should be consigned to:

(i) The most complex cases where death or very serious medical issues had arisen and where accurate medical diagnosis was integral to the future care of the child concerned;

(ii) Cases where there is only one factual issue to be decided and where the threshold criteria would not be satisfied if a finding could not be made, thereby concluding proceedings.

(b) Split hearings should not be used simply in order to establish a factual basis to inform social work assessment.

(c) Local authorities must take extra care in how they draft their threshold documents in cases where the subject child has received an injury, specifically bearing in mind the comments by the Court of Appeal in respect of the "unhelpful" nature of the terms "accidental" and "non-accidental" injury.

(d) Any decision to undertake a split hearing should be reasoned in court at the case management hearing and the reasons should be recorded on the face of the case management order.

Ryder LJ states, at paragraph 28, that the guidance provided to the court in S (A Child) should be applied in the context of public law cases only; a good example of Court of Appeal guidance in respect of split hearings in the private law context can be found in C (Children) [2009] EWCA Civ 994. In the public law arena, it certainly now appears that courts will be expected to be increasingly vigilant in respect of the consideration of the merits of split hearings. It could well be that, with the exception of a small number of complex cases involving discrete medical issues, split-hearings may be a thing of the past.