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Can the family court refuse to allow a party to give evidence or cross-examine?
1. The recent case of Mother v Father [2022] EWHC 3107 (Fam) reminds us of the court’s powers to limit evidence. The case concerned an appeal by a mother against the decision of magistrates who determined neither parent was to be allowed to cross-examine the other at a contested final hearing.
2. The parties are the parents of an 8 year old girl. In March 2021 the mother applied for the child to live with her and for her school to be changed. The father made a cross application for the child to remain living with him and to remain at her existing school. A Section 7 report was completed by Cafcass which recommended that the child live with the father and spend time with the mother. Both parents filed witness statement. The matter was listed for a final hearing with a time estimate of a day on 18th October 2022.
3. Both parties were represented at the final hearing by counsel and the Cafcass officer who had completed the Section 7 report was in attendance. The Bench determined that the matter should proceed without either parent being entitled to cross-examine the other. Recitals to the order included:
a. The bench determined that the matter should proceed without either party being permitted to cross-examine the other.
b. The mother indicated she would want to appeal that decision on 3 grounds:
i. Firstly that she did not agree with matters in the father's statement which went to the case and the welfare of the child and in being prevented from properly challenging these matters the case could not be fairly or properly heard.
ii. Secondly that the bench indicated that the decision not to allow the cross-examination of the parents was on the basis that there were no safeguarding issues.
iii. That the bench had prejudged the case and accepted the CAFCASS Officer's report before the CAFCASS Officer had been cross-examined.
c. In the circumstances the bench adjourned the case pending the mother's application to appeal.
d. Both parties indicated that they are very unhappy with the further delay that must then occur and the impact of that on the child.
e. Other Matters - It is agreed that the CAFCASS Officer shall speak with the school to identify a single person there to explain to the child what has happened today.
8. Furthermore, the F wished to rebut an allegation by the M of "malicious parenting" - the M had alleged that the F had been undermining the child's confidence about wearing her glasses in school "for the sole purpose of winning custody". The F had applied to file a letter from the headteacher about the child's glasses. The Cafcass officer was asked by the Court to read the letter from school and give her opinion. The school had no welfare concerns.
9. It was submitted on behalf of the M that the decision to prevent the parties cross-examining each other was so unfair as to be procedurally wrong within the meaning of FPR30.12(3)(b): “the case was listed for a full hearing of a day and, as such, the parties had an expectation that they would be allowed to cross-examine. There was sufficient time for cross-examination so there was no concern about delay or wasting court time. She said that the Magistrates decision had tipped over into unfairness, and relied upon the following passage in Re SW (Children) [2015] EWCA Civ 27 at [24]:
A key feature of the family justice reforms now found in the CA 1989 as amended and FPR 2010 Part 12 and Practice Direction 12A , has been the use by the courts "vigorous and robust case management" as a tool for ensuring that, wherever possible, delay is minimised and the statutory 26 week requirement found at s32 CA1989 , is achieved. It is undoubtedly the case that, as a result of the reforms, there has been a significant change in culture, driven through by dedicated judges and specialist counsel and solicitors up and down the country. Many care cases are now concluded at either the IRH or well within 26 weeks, to the considerable benefit of the children involved. The Liverpool area has been notable in its successful implementation of the reforms and its early achievement of the routine disposal of care cases within 26 weeks.”
10. Further, it was submitted by counsel for the M that there were specific issues that the M wished to challenge the F upon and the Court needed to hear evidence and cross-examination on those issues which included the allegations the M raised against the F trying in respect of allegedly preventing the child from attending the optician and wearing glasses.
11. Counsel for the M also submitted that ‘the Bench erred in treating the Cafcass officer as the arbiter of the concern that had been raised by the M about the glasses and that the Bench had prejudged the case and had accepted the Cafcass report before they had heard evidence from the officer, or submissions.’
12. Counsel for the F submitted that ‘the Bench's decision fell well within the scope of its case management powers. If they were satisfied that it could fairly determine the case without hearing cross-examination of the parents, then that was a matter for the Court.’
13. The appeal court concluded as follows:
“The Court's decision fell within the scope of their case management powers and discretion. The starting point is that there is no right in any party to cross-examine. This is made entirely clear by FPR22.1. It is open to the Court to limit cross-examination where it is fair and proportionate to do so. This must include the power to prevent cross-examination altogether given that FPR22.6 provides that the Court can order that a witness should not be called at all. It would make no sense of FPR22.1 to restrict it in the way [counsel for the M] suggests to having to allow the witness to be cross-examined but then restrict what s/he is cross-examined about.The question then becomes whether, on the facts of this case, the decision not to allow cross-examination of the parents was one that fell within the Bench's case management discretion. The test in FPR30.12(3) is whether the decision was unjust because of a serious procedural error. Munby LJ in Re TG at [36] said that in a case management appeal there would need to be a "serious error" and the case management judge would have to "have gone plainly wrong".In this case there is no such error. The Court had two statements from the M and one from the F. They therefore knew what the parties' evidence and positions were. Further, Counsel for the parents could cross-examine the Cafcass officer and, as such, put any material areas of disagreement to her. It was open to the Bench to consider that this would be a more effective and proportionate way to consider the material, rather than hearing oral evidence from the parents. It should be remembered that the Bench had the parties' written evidence.”
14. The Court also addressed the specific issues raised on behalf of the M reiterating that the court does not have to address every single issue. 15. The case can be found here - Mother v Father [2022] EWHC 3107 (Fam) (05 December 2022) (bailii.org)
