The President’s Guidance in relation to Split Hearings
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THE PRESIDENT’S GUIDANCE IN RELATION TO SPLIT
HEARINGS
May 2010
Introduction
1.
Over recent months
and years it has become apparent to me that split hearings are: (1) taking
place when they need not do so; and (2) are taking up a disproportionate amount
of the court’s time and resources.
2.
I have therefore
decided to issue the following Guidance in an attempt to assist judges and
magistrates who are invited to direct split hearings.
3.
Like all Guidance,
what follows is not binding on the judiciary at any level. It is an attempt to
identify good practice. Moreover, it is designed to apply in both private and
public law proceedings.
4.
In this Guidance, I
propose to use the following terminology: -
A “split hearing” is a hearing
divided into two parts, during the first of which the court makes findings of
fact on issues either identified by the parties or the court, and during the
second part of which the court, based on the findings which it has made,
decides the case.
A “fact finding hearing” is the
first limb of a split hearing.
Guidance
5.
Judges and
magistrates should always remember that the decision to direct a split hearing
or to conduct a fact finding hearing is a judicial decision. It is not a
decision for Cafcass or for the
parties. It is a decision to be taken by the court. Thus the court should not
direct a fact finding hearing simply because the parties agree that one is
necessary or because Cafcass says that
it cannot report without one. Such considerations are, of course, to be taken
into account, but they are not conclusive. In any event, the focus of any
report is a matter for the court.
6.
Judges and
magistrates should always remember that a fact finding hearing is a working
tool designed to assist them to decide the case. Thus a fact finding hearing
should only be ordered if the court takes the view that the case cannot
properly be decided without such a hearing.
7.
Even when the court
comes to the conclusion that a fact finding hearing is necessary, it by no
means follows that such a hearing needs to be separate from the substantive
hearing. In nearly every case, the court’s findings of fact inform its
conclusions. In my judgment it will be a rare case in which a separate fact
finding hearing is necessary.
8.
Thus, for example,
the fact that domestic abuse is put forward by the residential parent of a
child as a reason for denying the non-residential parent contact with the child
is not automatically as reason for a split hearing with a preliminary fact
finding hearing. As the President’s Practice Direction: Residence and
Contact order: Domestic Violence and Harm of 14 January 2009 [2009] 2 FLR
1400 makes clear, the court must consider the nature of any allegations, and
the extent to which those allegations, if admitted or proved “would be relevant in deciding whether to make
an order about residence or contact and, if so, in what terms” – see para [3]
(emphasis supplied). In para [11] the court is again
instructed to “consider the likely impact of that issue (domestic abuse)
on the outcome of the proceedings” (emphasis supplied) and whether
or not the decision of the court is likely to be affected by findings of
domestic abuse. Plainly, if the allegations are unlikely to have any impact on
the court’s order, there is no need for a separate fact finding hearing.
9.
In addition, in
cases in which the court concludes that a fact-finding hearing is necessary,
the Practice Direction requires the court to give directions designed to
ensure that “the matters in issue are determined expeditiously and fairly” (emphasis
supplied).
10. 10 None of the foregoing is designed to minimise or
trivialise domestic abuse or its effects on children and upon its other victims,
or to discourage victims from coming forward with abuse allegations. I repeat that the aim of
the Guidance is to enable magistrates and judges fully to address their minds
to the need for a separate fact finding hearing.
11. The rationale for split hearings in care proceedings
was enunciated by Bracewell J in Re S (Care
Proceedings: Split Hearing) [1996] 2 FLR 773 when, voicing the views of the
Children Act Advisory Committee, she stated that consideration could usefully
be given to whether or not there were questions of fact within a case which
needed to be determined at an early stage. The advantages of doing so, she said
were that early resolution of such facts “would enable the substantive hearing
to proceed more speedily” and would enable the court to “focus on the child’s welfare
with greater clarity”. Cases suitable for split hearings, she commented “would
be likely to be cases in which there is a clear and stark issue, such as sexual
abuse or physical abuse”. Once again, the object was “to prevent delay and the
ill-focused use of scarce expert resources”. These factors should be borne in
mind by the court when deciding whether or not to order a split hearing.
12. Magistrates and judges are reminded of the decision
of the Court of Appeal in Re C [2009] EWCA Civ
994. They might also care to look at paragraphs 27 to 35 of my recent judgment
in the case of W ( Children) [2009] EWCA Civ
644, now also reported at [2009] 3 FCR 1.
13. Courts are also reminded of the provisions of the
Practice Direction: The Revised Private Law Programme which came into effect
from 1 April 2010.
NOTE
From
time to time issues will arise with which magistrates and judges at every level
will have to grapple and which will cause difficulties. Against this background
I intend from time to time to issue what I propose to call “Guidance” designed
to help colleagues make difficult decisions. Self-evidently such Guidance is
not designed to tell courts what to decide: the objective is to assist them in
the process of going about the decision making progress. Plainly, it will be
appropriate not to follow the Guidance in some circumstances: what I hope is
that in a sufficiently large number of instances the Guidance will be of use
and will help magistrates and judges in the decision making process.
Nicholas Wall, May 2010
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