Split Hearings – Only When There’s A Purpose
One of my recent cases revolved around the welfare of two very young children, where proceedings arose following the detection of a broken arm in the four-month old baby. Following emergency removal both children were being well cared for in the home of their maternal grandmother, and having regular, good quality contact with their parents. The big question was the overarching one of how to tackle potentially serious factual issues, and when it would be best to do so.
Across a number of hearings there was an ongoing debate about whether, in the particular circumstances of this case – with extremely attentive and loving parents; an apparently close and very supportive extended family; no history whatsoever of social services involvement; unquestioning cooperation with social services and medics from the outset – a separate fact-finding hearing was either necessary or likely to be helpful. From an early stage the local authority, specifically the lead social worker, was receptive to approaching the case in a more progressive way, attempting to avoid the damaging effects on the family of a stressful, highly contentious hearing of that kind.
As it happens, the debate about holding a fact-finding hearing in this case coincided with some extremely clear guidance from the Court of Appeal in relation to split hearings in care proceedings generally. In Re S (A Child)  EWCA Civ 25 Lord Justice Ryder set out definitively the modern approach to fact-finding hearings.
The facts, taken from the headnote, were these. A fact finding within public law proceedings was held following the admission to hospital of a child with a serious head injury. The local authority presented its case that the injury was non-accidental, deliberately inflicted and had occurred whilst the child was in the care of the parents. The local authority alleged that one of the parents had caused the injury and the other had failed to protect the child from that harm. The judge concluded that the child had suffered significant harm whilst in the care of the parents and that the harm was caused by an injury. He was not satisfied that either parent had deliberately inflicted the injury. The Court of Appeal found that the judge cannot be said to have been plainly wrong in the findings he made or in the inferences he drew or declined to draw and his reasoning was sufficient given that he had the benefit of hearing the oral evidence.
The headnote goes on:
“Consideration was … given by Ryder LJ as to the use of split hearings:
i) His considerations relate only to public law children proceedings, not private law children proceedings. ii) Split hearings must be confined to cases where there is “a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination … to be made more expeditiously.” iii) Split hearings should be used where the threshold criteria would not be satisfied if a finding could not be made in the most simple of cases, thereby concluding the proceedings, or in the most complex medical causation cases where death or very serious medical issues have arisen and an accurate medical diagnosis is integral to the future care of the child. iv) It is inappropriate to argue a split hearing is required to enable a social care assessment to be undertaken. “In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider.” v) A decision about a split hearing is a case management decision and accordingly Part 1 of the FPR 2010 and Pilot PD 12A apply. A split hearing is only justifiable where the delay is in furtherance of the overriding objective. Any such decision should be considered at the case management hearing and reasons should be recorded on the face of the order along with the issue to be tried.”
So, there is very clear guidance to think carefully about the timing and purpose of any separate fact-finding hearing that might be proposed, and as it turned out this was just the encouragement the local authority needed. Bearing in mind the various aspects of this guidance, in the end they expressed a clear preference for avoiding a split hearing. Instead the court was asked to determine any necessary evidential issues at a final hearing, when all threshold/fact-finding questions as well as welfare issues could be considered together.
An important aspect of the Re S guidance concerns local authorities taking very great care over the precise terms of findings sought. This arises directly out of Ryder J’s concern about less than careful use of the term to which we have all become so accustomed: “NAI or non-accidental injury”.
“I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).”
The local authority put forward a proposed findings/threshold document which, in line with the guidance above, was deliberately as specific as possible both in terms of the precise nature of the injuries and the actions and state of knowledge of the possible perpetrators, but invited the court to consider that document, the parties’ responses to it, and the extent to which it might be necessary to make any specific findings, at the final hearing.
In the meantime there would be assessment of the family as a whole by John Gumbleton and his colleagues at Resolutions in Bristol, who of course have the massive advantage that they can work with parents not only when findings have not yet been made, but even sometimes when parents are in denial of established facts. Funding for the Resolutions programme was approved by senior managers following the efforts of the social worker, who emphasized that avoiding the delay and costs of a separate fact-finding hearing had been an important factor in being able to prioritise this approach.
Happily, in this particular case, the Resolutions approach worked. Despite denials of any deliberate infliction of injury the parents worked in close cooperation with the social workers and experts. The wider family pitched in with practical and emotional support and, in the end, the children were returned home. They continue to do well without further attention from the local authority. I’m sure we can all imagine how differently things might have worked out if we had unthinkingly gone down the old route.