Court considers use of split hearings in care proceedings

In Re O and N (Care: Preliminary Hearing) [2002] Family Law 790,
the court of appeal considered the use of split hearings in care
proceedings. They are used to establish findings at an early stage
of the proceedings. It has been a problem that the courts have not
made it clear whether the purpose of the preliminary hearing is to
establish the threshold criteria in section 31 of the Children Act
1989 as a whole or merely as an exercise to establish disputed
facts.

In Re O and N the court of appeal stated that once it had become
apparent that the threshold would be crossed without difficulty, it
was not clear that a preliminary hearing would be necessary. If it
was, the parties should agree the issues to be resolved. The
questions should be formulated, so that directions could be given
as to the evidence to be filed to answer them, and so that the
court could answer yea or nay wherever possible, or otherwise with
the minimum narrative.

That suggests that the procedure should be used for the more
narrow purpose of finding essential facts, rather than the more
general purpose of establishing the criteria at an early stage, so
that parties can consider their position solely on the basis of the
welfare of the child.

Because of the way the questions had been formulated in the
case, the court of appeal was led to make the observation that it
was not for a parent to exculpate themselves, where a child must
have been injured by one of two parents. The onus was on the
authority to prove its case. This decision conflicts with other
authority and is likely to be appealed to the House of Lords.

Richard White

White and Sherwin Solicitors