Re: S (Vulnerable party fairness of proceedings) [2022] EWCA Civ 8
The case concerned two children: S (6) and J (5). S's parents were X and Y, and J's mother was A. Over a weekend in January 2020 J spent some time in the care of X and Y, and the balance of time with A. When injuries were discovered on J, those in the pool of possible perpetrators were therefore A, X and Y. Care proceedings had been started in relation to S because her parents were in the pool of possible perpetrators and A had been joined as an intervenor to those care proceedings. S moved to live with her aunt.
In January and February 2021, a Fact-Finding Hearing took place. Other findings about A's misuse of ketamine were also sought. A argued that findings about her care of J which were not relevant to the care proceedings relating to S should not have been pursued in S's care proceeding but the Court rejected that argument and considered all allegations.
The Circuit Judge found that most of J's injuries were accidental but that some had been inflicted by A. She also found that A had deliberately attempted to establish a finding against X and Y despite knowing she had inflicted those injuries, that A was misusing ketamine at a higher level than she had admitted and that she had deliberately attempted to avoid this being discovered. Separate proceedings were then issued in relation to J and his older brother, relying on those findings, although the children remained at home under interim Supervision Orders.
A appealed against the findings in S's proceedings.
Permission to appeal was allowed to be brought on a ground of procedural unfairness. She argued that the court had made findings against her which exceeded those sought in the schedule, without any reason for doing so. She argued that she 'has had significant findings made against her in proceedings not related to the welfare of her child and in which no relevant social worker evidence was produced.' (Paragraph 20) A further argued that the Court had not taken account of her cognitive difficulties and had not considered adjustments which might be required to ensure her participation (which may have been assisted by the use of an intermediary).
The Court of Appeal recorded that it was confident A had been treated fairly in the context of what had been known about her needs at the time. However, the later evidence made clear that she did have cognitive difficulties and there was a significant possibility that this would have affected the Judge's view of the quality of her evidence.
The Court of Appeal set out the requirements of Part 3A of the Family Procedure Rules, which require the Court to consider whether a party's participation in proceedings is likely to be diminished by reason of giving evidence and if so to consider whether to make 'Participation Directions'. Participation Directions are defined as being either 'a general case management direction for the purpose of assisting a witness or party to give evidence or participate in proceedings' or one of a range of measures set out in r3A.8. These include providing for the witness or party to have the assistance of an intermediary.
The Court of Appeal set out the duties of the Court, the parties and their representatives to identify vulnerable parties or witnesses in a case.
The Court of Appeal stressed that a failure to comply with these provisions will not invariably lead to a successful appeal: the question will be whether there has been a serious procedural irregularity, and if so, whether as a result the decision was unjust. On the facts however this was such a case.
This important case was shortlisted in the 2022 Lexis Nexis Awards – Case of the Year category
