To fact-find or not?

Composite or separate fact-finding hearing in care proceedings

The case of Lincolnshire County Council v CB & Ors [2021] EWHC 2813 (Fam) considered whether it was necessary for a separate Fact-Finding Hearing to take place within a set of care proceedings. A Fact-Finding Hearing is when the Judge hears evidence and decides on disputed issues, to determine whether an alleged incident took place or not.

This is a very sad case whereby a child, XE died in the care of his parents. XE had cerebral palsy, could not walk, move, hold his body weight and was non-verbal. There was a long history of Social Services Involvement with the family. It was not disputed that XE had died from drowning in the bath at his parent’s home.

What was in dispute was what role, if any, either or both parents may have had in the death of their child. The police investigated but ultimately closed their case without any criminal charges in relation to the parents.

The Local Authority was however concerned about the care afforded to the other children of the family (A, B & C). What the court was asked to determine was whether a 5 Day composite Final Hearing was sufficient to deal with both the Fact Finding and Welfare issues of the case, or whether a separate 20-day Fact Finding Hearing should be listed.

The parents argued that it was necessary for the court to determine the precise events of the evening of XE’s death, and the 20-day Fact Finding Hearing was necessary so that approximately 20 police witnesses and 9 additional witnesses could give evidence.

The Local Authority and Guardian considered that the primary consideration for the court should be the welfare of the children. They argued that a lengthy Fact-Finding Hearing would have delayed a long-term placement for the children and the therapeutic work which had been recommended. A child psychiatrist who assessed the children opined that the children needed complex bereavement support and trauma work, however, they felt that this work should not commence until a long-term placement had been secured for the children.

‍The Decision

The Judge reiterated the competing factors which must be borne in mind when making such a decision, and delay alone should not lead to refusing a Fact-Finding Hearing. However, the importance of achieving an appropriately speedy outcome for the children remains an important consideration. This had weight in this case due to the counselling which had been recommended.

The Judge reiterated that the real question is whether a Fact Finding is truly “necessary” for the ultimate welfare decision the Court must make. If it is not necessary for that decision, then a Fact-Finding hearing should not be undertaken.

In a case where there the Local Authority had additional concerns which went well beyond the area of factual dispute between the parents over the night of XE’s death, the Judge considered that it was unnecessary to have a separate Fact-Finding Hearing.

The Judge agreed with the Local Authority and Guardian that a time estimate of 5 days for the composite Final Hearing was appropriate to deal with both the Fact Finding and welfare issues.

This is an important case as it is a reminder for all practitioners to consider the necessity of separate lengthy fact-finding hearing when the issues in dispute are relatively narrow. This is especially important when consideration is given to the court’s resources and the impact that a lengthy fact-finding hearing may have on other cases in the court’s diary.

‍We specialise in providing advice and representation in relation to Local Authority involvement. If you require this type of advice, please contact our Harry Clayton at h.clayton@wilsonllp.co.uk for more details, or to arrange for an appointment, please call Mavis on 020 8885 7986.

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