The recent appeal of Mother v Father [2022] EWHC 3107 (Fam) explores and confirms judicial case management powers, with an emphasis on when and how the Court will hear evidence.

The mother in this case appealed the decision of a Lay Bench to limit the oral evidence and prohibit either parent being cross-examined.

The pertinent background facts are as follows:

1. The parties are the Mother (“M”) and Father (“F”) of X, an 8 year old girl. The parents separated in 2019 and X remained living in the family home. The F works close to the family home, whereas the M’s work is some 50 miles further north,
2. M applied for X to live with her and for her school to be changed from close to the family home to the town where the M was living,
3. F made a cross application for the child to remain living with him and to remain at her existing school,
4. Cafcass produced a section 7 report and recommended that the Court make a Child Arrangements Order (“CAO”) that the child live with the F and have contact with M,
5. M argued that the section 7 report was inaccurate and that there should be a fact finding hearing, which the Court refused,
6. The matter was then listed for a contested final hearing, with the Section 7 author in attendance.

At the final hearing, the Lay Bench determined that the matter should proceed without either party being entitled to cross-examine the other. M subsequently appealed on three grounds:

1. First that she did not agree with matters in the father’s statement which went to the case and the welfare of the child and in being prevented from properly challenging these matters the case could not be fairly or properly heard.
2. Secondly that the bench indicated that the decision not to allow the cross-examination of the parents was on the basis that there were no safeguarding issues.
3. Thirdly that the bench had prejudged the case and accepted the CAFCASS Officer’s report before the CAFCASS Officer had been cross-examined.

The matter was adjourned to permit the appeal to proceed.

 

Relevant legal framework

 Family Procedure Rule (“FPR”) 22 is engaged when determining the Court’s case management powers.

FPR 22.1 details the power of the Court to control evidence and FPR 22.6 confirms the use of witness statements at the final hearing.

The Court must always have the overriding objective as set out at FPR 1.1 in mind.

Specifically, when dealing with an appeal of a case management decision, the Court must bear in mind Re TG (a child) [2013] EWCA Civ 5, specifically:

[35] (4) Fourth, the Court of Appeal has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case-management decisions: Deripaska v Cherney [2012] EWCA Civ 1235 , paras [17], [30], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706, paras [25], [45], [46]. Of course, the Court of Appeal must and will intervene when it is proper to do so.

 However, it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge: Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964 , paras [37]-[38], [47], Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 , para [33], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706 , para [46]. This is not a question of judicial comity; there are sound pragmatic reasons for this approach. First, as Arden LJ pointed out in Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964 , para [47]:

 “Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process.”

 Second, as she went on to observe:

 “The judge dealing with case management is often better equipped to deal with case management issues.”

 The judge well acquainted with the proceedings because he or she has dealt with previous interlocutory applications will have a knowledge of and ‘feel’ for the case superior to that of the Court of Appeal.

 [36] Exactly the same applies in family cases. Thus in Re C Thorpe LJ and I dismissed the appeal notwithstanding what I said was the “robust view” His Honour Judge Cliffe had formed when deciding to stop the hearing. And in Re B I refused permission to appeal from an order of Her Honour Judge Miranda Robertshaw involving what I described (para [16]) as “appropriately vigorous and robust case management.” I said (para [17]):

 “The circumstances in which this court can or should interfere at the interlocutory stage with case management decisions are limited. Part of the process of family litigation in the modern era is vigorous case management by allocated judges who have responsibility for the case which they are managing. This court can intervene only if there has been serious error, if the case management judge has gone plainly wrong; otherwise the entire purpose of case management, which is to move cases forward as quickly as possible, will be frustrated, because cases are liable to be derailed by interlocutory appeals.”

 As Black LJ very recently observed in Re B (A Child) [2012] EWCA Civ 1742, para [35]:

“A judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.”

 

 Analysis and conclusion

 Parents involved in proceedings involving their children often wish to have their say or ask the other parent questions. They feel it is their right to give evidence, but the dismissal of the appeal confirms that this is not necessarily true when looking at the Court’s case management powers.

Mrs Justice Lieven DBE dismissed the mother’s appeal confirming that the Court’s decision fell within the scope of their case management powers and discretion.

To summarise the Judge’s reasons for the above decision:

1. The starting point is that there is no right in any party to cross-examine,
2. 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,
3. It is 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,
4. 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,
5. It was entirely open to the Court to take the view that they needed to hear the Cafcass officer on this matter, but that the oral evidence of the parents would not be of material assistance,
6. The procedure to be adopted in court is a matter for the judge or tribunal, subject to the basic principles of natural justice and, to the degree it does not overlap, Article 6,
7. Finally, I note the Bench adjourned the case to allow the Mother to appeal. I fully understand why they took this course, but Courts in this situation should carefully consider whether it would be more effective and proportionate to continue with the hearing and then for any appeal to be based on the substantive outcome. It is possible that the grounds for appeal would thereby fall away, and it would have the obvious benefit of not building more delay into the determination of the case.

The clarity this judgment has provided on case management issues, particularly the necessity of oral evidence,  is likely to be welcomed by Family practitioners, who often have to deal with these types of hearings which have already been severely delayed and are listed alongside other matters.

It will also assist those appearing in a family court to better understand the Court’s role and that the Court is not required to address every single issue and will focus their decision making on the key points relating to welfare.

 

1. Friendly reminder that this article is not to be viewed as legal advice, and is simply for educational purposes and to help keep practitioners up to date on the key legal framework

 

Rachel Norgate

 30^th January 2023