When is a separate fact finding hearing necessary in care cases? – An update on the law

This is a very recent case in which this issue has been considered and which takes into account the current climate, and helpfully summarises the relevant law.

In Lincolnshire County Council v CB & Ors [2021] EWHC 2813 (Fam) Mrs Justice Lieven DBE conducted an analysis of the factors that require consideration when making a case management decision regarding the need or otherwise of a separate fact-finding hearing and taking into account the current climate (of Covid-19).

In this case the Judge considered the argument put forward on behalf of the parents that it was necessary for there to be a separate fact -finding hearing of up to 20 days in length and with a number of witnesses, to resolve the question of what, if any, role of either / both of them had in the death of their child, XE, following an investigation by the police which was ultimately closed without any charges in relation to his death being brought against them.

The Local Authority and Guardian argued that this was neither necessary or proportionate and proposed that the disputed factual matters could be dealt with as part of a composite 5-day final hearing. In doing so, significant emphasis was placed upon the inevitable delay that a 20 day fact – finding hearing would give rise to, as the surviving subject children had been in care since 26th January 2021 (for nearly 10 months at the time of the judgment), and had been assessed as being in particular need of complex therapeutic input which should only start once they are in their long term placement so that their carer(s) can support them through this process.

In the course of her judgment, the Judge reiterated the competing factors which must be borne in mind, and which are well established by the existing rules and case law, but also referred to the particular impact that COVID-19 has had upon the family courts in general.

In doing so, she confirmed at [17] that as this is a case management decision, the starting point is FPR rule 1.1 namely that: “Dealing with a case justly includes, so far as is practicable:

• ensuring that it is dealt with expeditiously and fairly;
• dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
• ensuring that the parties are on an equal footing;
• saving expense; and
• allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

At [18] she also referred to the recent Court of Appeal decision Re H-D-H (Children) [2021] 4 WLR 106, which reiterated the principles espoused in A County Council v DP [2005] 2 FLR 1031, at [24]-[25], namely that: “24…amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

1. The interests of the child (which are relevant but not paramount);
2. The time that the investigation will take;
3. The likely cost to public funds;
4. The evidential result;
5. The necessity or otherwise of the investigation;
6. The relevance of the potential result of the investigation to the future care plans for the child;
7. The impact of any fact-finding process upon the other parties;
8. The prospects of a fair trial on the issue;
9. The justice of the case”

and the court’s view in the case that: “24…Amongst the pertinent questions are: Is there a pressing need for such a hearing? Is the proposed fact finding hearing solely…’to seek findings against the father on criminal matters for their own sake?’ Is the process, which will be costly and time consuming… proportionate to any identified need?”

At [19] she also reiterated the various factors to be considered as set out by the Court of Appeal in Re H-D-H at paras 22 and 23.

In reaching her decision, the Judge pointed out that although it is a consideration, the children’s welfare is not a paramount concern in this context [20] but that, in this case, such was the prospect of a significant delay arising were the matter to be listed as proposed on behalf of the parents that “…the importance of achieving an appropriately speedy outcome for the children remains an important consideration and that factor here is particularly weighty” in view of the children’s need for therapy and the recommendations that this should only commence when they are in their long term placement.

Ultimately, at [22] she concluded that: “The true question is whether the fact finding is truly “necessary” for the ultimate welfare decision that the Court has to make. If it is not necessary for that decision, then a fact-finding hearing should not be undertaken.” and drew attention to the fact that the need to consider the impact upon the court’s resources and to properly apply this test is all the more essential in the current climate.

In reaching her decision, and taking into account the suggestion on behalf of the parents that even if there was not to be a separate fact-finding hearing, 5 days would not be sufficient, the Judge concluded that not only was the disputed issue a sufficiently narrow one for the court to be able to deal with it at a composite final hearing, but also to obviate the need for the number of witnesses sought on behalf of the parents; none of whom could offer direct evidence regarding the incident itself, and whose evidence would, therefore, carry little forensic weight over and above that which could be derived from the bodycam footage and recordings of the 999 call. On this basis, she rejected the parents’ proposals in their entirety and agreed with the Local Authority that a time estimate of 5 days for the composite final hearing was appropriate accordingly.

In summary, this case encapsulates all the issues and relevant law that would need to be considered when dealing with the issue of fact-finding hearings, which can often be a difficult issue in many care cases, and happily, can be found in one place.