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L (Fact-Finding Hearing: Fairness) [2022] EWCA Civ 169

The Court of Appeal (Lord Justice Baker and Lord Justice Snowden) refuse an appeal against a fact-finding judgment in which a Recorder made findings that went beyond those sought by the local authority.

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Background

The public law proceedings concerned L, aged 2, the youngest of three children born to the same mother (M), with three different fathers, X, Y and Z. The local authority (LA) was involved after an altercation between Y and Z in April 2017, which resulted in Z being convicted of assault. The concerns related to cannabis misuse, anti-social behaviour and domestic abuse in the relationship between M and Z; the LA was concerned that Z was exercising coercive control over the mother. After further incidents the LA started pre-proceedings processes and the older children J and K went to live with their respective fathers.

The LA started care proceedings after an assessment recommended that L should remain at home with M under an interim care order. The private law proceedings about J and K were consolidated with the care proceedings. There were various iterations of the threshold document. The final version included allegations about the relationship between M and Z and about Z's a series of incidents when Z was said to have shouted at M or called her derogatory names and relied on accounts that M had given to police and other professionals.

By the final hearing the LA plan was for L to remain with M and Z subject to a child protection plan; it did not seek a care or supervision order. Z took issue with the threshold document and disputed many of the specific allegations against him. X wanted his own child to remain with him; his position statement for the final hearing made various submissions about the relationship between M and Z including an allegation that in 2020 M had contacted him (X) in the early hours asking to transfer money to him so that Z couldn't access it. This was said to be linked to concerns about Z having gambling problems and acting coercively to M.

The hearing

At the outset the LA, M and Z argued that a fact-finding hearing should not take place. LA said it might struggle to establish threshold as one of the professionals to whom M was said to have made allegations about Z was unavailable and M denied having made those allegations. The Recorder decided to proceed with the hearing, inter alia because it was important for L that there should be a clear factual basis for a child protection plan; alternatively if threshold was not proved she and her parents would be protected from unnecessary professional intervention.

Another of the professionals who had been due to give evidence about what M said to her was also unavailable. Police officers and a housing officer had never been on the witness template despite the mother also disagreeing with their accounts. The allegations in threshold and X's allegation about the money transfer were put to M and Z. M accepted that the conversation and subsequent transfer took place but denied this related to gambling. After hearing the evidence the guardian formed the view that L should be the subject of a supervision order.

The Recorder made findings which went beyond the threshold document. On the basis of the specific findings made he went on to find that Z's behaviour had been coercive and controlling of the mother. He found threshold met and adjourned the case as a proper risk assessment was needed in view of his findings before a welfare decision could be made.

The appeal

Permission was granted on two grounds:

• The Recorder was wrong to make so many findings outside the scope of the threshold document, particularly when the parents were unable to test the evidence of the authors of hearsay reports relied on;

• He was wrong to find threshold made out as there was inadequate linkage between the facts found to L suffering/ likely to suffer significant harm at the relevant date.

The relevant case-law is discussed at §62-69.

Discussion §70-

The following points are made:

• While the findings went beyond what was sought by LA, they were not beyond the "known parameters" of the case.

• Most of the findings were in line with the schedule or an expansion of the findings sought.

• The evidence will almost invariably develop and expand during a contested hearing, particularly when there are several parties seeking to draw out different points from the evidence.

• The significance of a piece of evidence often only becomes apparent during the oral evidence.

• One finding was not in the schedule but was referred to in the LA's evidence and the Recorder was careful not to make findings on aspects of the allegation on which there was a conflict of evidence.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII