Mother v Father [2022] EWHC 3107 (Fam): I was not allowed to give evidence or cross-examine in family court: can I appeal?

Private Law (Child Arrangements Programme (CAP))

20 December 2022

This article provides an overview of the court’s powers in limiting evidence heard during family court proceedings. I will be examining some key lessons on this topic as heard in the recent case of Mother v Father [2022] EWHC 3107 (Fam).

Giving evidence at a hearing concerned with your child or children may feel like a protected right of any parent involved in court proceedings about contact with the other parent. However, this is not necessarily the case when we examine the court’s case management powers.

The case concerned Children Act proceedings between two parents in respect of their 8 year old daughter “X”. The basic facts of the case are straightforward. The parents separated in 2019 and X remained living in the family home with the father. He worked close to the home while the mother worked around 50 miles away. The mother applied for X to live with her and change school in doing so, while the father cross-applied for the child to remain living with him and remain at her existing school.

At the contested final hearing at which both parties were represented, the court determined that the matter should proceed without either party being entitled to cross-examine the other, and only the Cafcass officer giving evidence and being subject to cross-examination. The mother appealed this decision. The case was adjourned to permit the appeal to proceed.

Mrs Justice Lieven DBE heard the appeal. Her judgment at paragraphs 9 to 13 helpfully sets out the law on the court’s relevant case management powers under rules 22.1 and 22.6, the overriding objective under rule 1.1 and her appeal powers under rule 30.12.

The mother submitted in essence that the court was procedurally wrong under FPR 30.12 (3)(b). Her reasons were as follows:

a. That although 22.1 gives the court the power to limit cross-examination, it does not have the power to entirely refuse it.

b. The case was listed for 1 day, giving the parties an expectation that time would be allowed for full cross-examination.

c. There were specific concerns the mother wanted to challenge the father (summarised as allegations of X being bullied, of the father trying to prevent X from wearing necessary glasses, the importance of X attending a Roman Catholic School, the mother having been her primary carer up to 2019 and other issues relating to extra curricular activity attendance).

d. The court had erred in treating the Cafcass officer as the carrier of the mother’s concerns about the father trying to prevent X from wearing glasses.

e. The court had prejudged the case and accepted the Cafcass section 7 report without hearing evidence or submissions.

The father submitted that the court’s case management decision fell within their powers, and that the court had made no statement or indication that they accepted the Cafcass section 7 report without challenge.

Mrs Justice Lieven dismissed the appeal. She firstly disagreed with the mother’s submission on the reading of FPR 22.1, and lays out the correct reading at paragraph 23 of the judgment:

“The starting point is that there is no right in any party to cross-examine. This is made entirely clear by FPR22.1. It is open to the Court to limit cross-examination where it is fair and proportionate to do so. This must include the power to prevent cross-examination altogether given that FPR22.6 provides that the Court can order that a witness should not be called at all. It would make no sense of FPR22.1 to restrict it in the way Ms Beswick suggests to having to allow the witness to be cross-examined but then restrict what s/he is cross-examined about”.

She further considered that on appeal of this case management decision, there was no evidence to suggest that it was “a serious error” or “plainly wrong”. Emphasis was placed on the importance of what the court already had before it prior to taking the decision to limit oral evidence and cross-examination:

“The Court had two statements from the M and one from the F. They therefore knew what the parties’ evidence and positions were. Further, Counsel for the parents could cross-examine the Cafcass officer and, as such, put any material areas of disagreement to her. It was open to the Bench to consider that this would be a more effective and proportionate way to consider the material, rather than hearing oral evidence from the parents. It should be remembered that the Bench had the parties’ written evidence”.

The next salient point delivered by her Ladyship is one which parents may find difficult to hear when going through family court proceedings. This judgment leaves no doubt as to the importance of evidence from Cafcass and the high regard the court will likely always hold it in in cases such as this:

“I appreciate that it is hard for parents to accept, but it is likely that a court facing this type of issue will put the most weight on the Cafcass officer’s evidence. They are an independent person with great expertise in this field, and great skill in talking to children”. 

It was clear to Mrs Justice Lieven that the section 7 report was not accepted without being challenged as the court permitted the Cafcass officer to be cross-examined. This suggested that no pre-judging occurred and in addition to this there was an absence of any further evidence suggesting it was. Further, she noted that it is for the court to decide the pertinent issues, regardless of what may be most important to each of the parties.

This judgment can be summarised as a reminder of the basic premise of why we rely on evidence at all: it is to assist the court in reaching its decision. The court has its own powers, governed by the principles of the FPR, as to how best this can be achieved. There is no requirement for these powers only to be used to permit additional evidence; evidence may also be restricted, and there is no bar to this extending to witnesses not being called at all. This judgment also serves as a helpful reiteration on the reading of the FPR: provisions must be read in tandem with each other. The most salient example here is reading 22.1 alongside 22.6; the court must be able to prevent cross-examination entirely if it can limit it (pursuant to 22.1) and if it can direct that a witness not be called at all (22.6).

Read the full appeal here:

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