This is a guest post by Iain Large. Iain is a practising barrister and a member of St John’s Chambers in Bristol. He is a specialist in both public law children proceedings and private law disputes involving children, financial and property matters. He tweets as @ijmlarge. 

L (Fact-Finding Hearing: Fairness) [2022] EWCA Civ 169 (17 February 2022)

What is this case about?

This case is about how the court decides the truth of child protection allegations made against parents. Specifically: when is it fair to a parent for the court to decide the truth of allegations which haven’t been raised by the local authority bringing the case, in the first place?

The background                         

This case concerned three children: a girl (L) aged 2, and two boys (J and K) aged 3 and 6, who had the same mother but different fathers. L lived with her mother and her father (Z). J and K had lived with their mother but had moved to live with their fathers shortly before the case came to court. The local authority was worried about domestic abuse in the relationship between Z (L’s father) and the mother, which it said put any of the children at risk of harm if they lived with her.

Allegations against parents – the legal process

When a case like this comes to court, the local authority needs to pass a test commonly referred to as the ‘threshold criteria’ before the court can make final orders (including care orders) in its favour. The test is an important one: it makes sure that the state — in the form of a local authority — proves that concerns have reached a certain level (the ‘threshold’) before the court will allow it to intervene in the family lives of private individuals.

To pass the test the local authority needs to show that — at the time when it took protective steps for the child, most often when it made its application — the child was suffering or at risk of suffering ‘significant harm’. The harm needs to be related to the care being provided to the children, and the level of care needs to have fallen below what you would expect a reasonable parent to offer. The local authority also has to show that the things it alleges, did in fact cause the child harm or place them a risk of harm; it isn’t enough just to make allegations of poor parenting or bad behaviour.

When it makes an application, the local authority should set out clearly why it believes that the threshold test is met. Often this is based on things the local authority says the parents have done, or things that they have failed to do, which have caused harm or a risk of harm to the child. These allegations are set out formally in a ‘threshold document’, often in a numbered list, and the parents then respond to each point. If there is a disagreement, it is the judge’s role to resolve it by looking at the evidence and deciding where the truth lies before going on to decide whether what happened has caused harm or a risk of harm.

The allegations in the case about ‘L

In this case the allegations made by the local authority which made their way into the final threshold document were, broadly, that the mother and Z had heated arguments, sometimes in front of the children, and had an unstable relationship, that the mother didn’t engage with support services, and that Z used cannabis regularly. The local authority referred to evidence from other witnesses, including a police officer and a housing officer, who it said supported their concerns about the relationship.

This case, however, was unusual. The local authority, after completing a number of assessments, decided that it supported L remaining with the mother and Z, and the other two children remaining with their fathers. Therefore, the threshold test did not strictly need to be passed (and the allegations did not need to be proved) because the local authority was not asking for a care or supervision order.

Despite this, the judge decided that the facts the local authority had relied on when bringing its application were still relevant to the outcome of the case and, in particular, whether two of the children should live with their fathers or come back to live with their mother. So he decided to hold a fact-finding hearing with the task of deciding whether the allegations were true. He said that it was in L’s interests to know if the concerns that had brought the proceedings to court were true. There is no doubt that he was entitled to do this and no one appealed that decision. So, the fact-finding hearing went ahead.

However, during the hearing evidence was heard not just about the local authority’s specific allegations as set out in its threshold document, but also about other matters – including allegations made by one of the other fathers. For example, that father alleged that he had been asked by the mother to look after money in order to keep it safe from Z, which suggested that there had been controlling behaviour by Z.

The judge ultimately decided that most of the allegations in the local authority’s threshold document were true, and that the threshold was crossed in that L had been caused emotional harm. But he also decided that a number of additional allegations, raised not in the local authority’s threshold document but in the other evidence he had read and heard, were also true. It’s fair to that these were considerably more serious than those originally relied upon the by local authority and included that Z used the mother’s bank account against her wishes to control her, and that Z had used L as a tool (including through threats to take her away) to control the mother. As a whole, the judge found that Z’s actions amounted to coercion and control of the mother.

The appeal

Z, supported by the mother, appealed against the findings of the judge. It was accepted that the judge could decide facts that went beyond the local authority’s threshold allegations, but Z said that the court needed ‘very good reasons’ to do so. He said it was unfair to the parents if new, serious allegations were considered late in the day, which the parents had not been able to properly respond to earlier in the case. For example, Z said that if he’d known that the judge was going to consider issues of financial control, he would have provided bank statements which would disprove that allegation. Similarly, he said that he would have pressed harder for other witnesses, who gave ‘hearsay’ evidence about what they had been told about the relationship, to come to court so that they could be cross-examined by his lawyer.

The second part of Z’s appeal was that judge had been wrong to decide that the facts as he found them were enough to show that L had been suffering or at risk of suffering significant harm.

The outcome

The Court of Appeal accepted that the greater the difference between the local authority’s allegations and those the judge has decided to deal with, the more careful the court had to be to ensure the process was fair. That said, it was not unusual for cases to develop, sometimes in unpredictable ways, when witnesses start giving their evidence during a hearing.

Here, the Court did not think that the findings made by the judge were all that different from the way the local authority had set out its case all along. For example, while coercive control did not feature in the threshold document, it was prominent in the social worker’s first statement and in an earlier draft of the threshold document, which the mother had already responded to. Importantly, no one had been ‘taken by surprise’ by the additional allegations the judge was considering, and in fact the Court of Appeal was not at all surprised that the judge had widened his view of the issues of abuse between the mother and Z. The Court had in mind the recent emphasis placed on examining patterns of coercive and controlling behaviour in the case of Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448.

Similarly, the Court decided that neither parent had suffered unfairness by certain witnesses not being available for cross-examination by them, because the judge had taken that lost opportunity into account and because neither parent asked the judge to adjourn the hearing to a time when they could attend.

In light of this, the Court went on to reject the second part of the appeal and said that the judge had been clearly entitled to decide that the behaviour, including the coercive and controlling behaviour, had caused the child to suffer or be at risk of suffering significant harm. In fact, it said it was a good example of why it was so important to look at behaviour as a whole, rather than as isolated incidents, in order to assess the overall seriousness of coercive and controlling behaviour.

What can we learn from this case?

This is perhaps an example of the Court of Appeal looking at issues of fairness in a rounded and pragmatic rather than overly technical way. The fact that a threshold could have been better drafted (as had been accepted by the local authority at the original hearing), that the allegations could have been amended and updated at the outset of the hearing (as the Court of Appeal recommended), or that witnesses who ideally would have been available to give oral evidence at the hearing were not, did not mean that the appeal would succeed: the question was whether the process that resulted was unfair.

This case is also a reminder that appeals are decided on the specific facts of the case, even where broader principles are engaged. Here the broad principle is that the court must be careful not to allow parents to be ambushed by new allegations made late in the day: the further ‘off piste’ the judge decides to go, the more careful he or she has to be to avoid the cliff edges and avalanches. But the facts showed that neither parent was — in this specific case — disadvantaged by the process that had been followed.

For a very different case, where the same principles were in play but the ‘new’ allegations adopted by the judge were very different to the local authority’s original case and emerged for the first time very late in the hearing, see Re W (A Child) [2016] EWCA Civ 1140). There, the appeal was allowed; here, it was not.

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