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23 MAY 2014

View from the Foot of the Tower: Split hearings - the beginning of the end, or the end of the middle?

View from the Foot of the Tower: Split hearings - the beginning of the end, or the end of the middle?

The Court of Appeal have given two judgments in 2014 which indicate something of a sea-change in the way the higher Courts view split hearings or finding of fact hearings.

Neither case was specifically dealing with the issue of whether there should be a split hearing as part of the appeal, but both gave a clear message about a direction of travel.

In the first, Re S (Split Hearing) [2014] EWCA Civ 25, [2014] 2 FLR (forthcoming and reported at April [2014] Fam Law 429), Ryder LJ said this (emphasis added):

'[27] It is by no means clear why it was thought appropriate to have a "split hearing" where discrete facts are severed off from their welfare context. Unless the basis for such a decision is reasoned so that the inevitable delay is justified it will be wrong in principle in public law children proceedings. Even where it is asserted that delay will not be occasioned, the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (i.e. whether a statutory order is necessary) to be made more expeditiously. The reasons for this are obvious: to remove consideration by the court of the background and contextual circumstances including factors that are relevant to the credibility of witnesses, the reliability of evidence and the section 1(3) CA 1989 welfare factors such as capability and risk, deprives the court of the very material (ie secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made. It may also adversely impinge on the subsequent welfare and proportionality evaluations by the court as circumstances change and memories fade of the detail and nuances of the evidence that was given weeks or months before.

[28] I ought to emphasise for the avoidance of doubt that although parallels can be drawn between the use of fact finding hearings in public and private law children proceedings, the appropriate and measured use of fact finding hearings in private law proceedings which are often safety cases, for example involving recent domestic abuse between parents, are not the subject of this court's consideration in this judgment. An example of this court's guidance in relation to those proceedings can be found in Re C (Domestic Violence: Fact-Finding Hearing) [2009] EWCA Civ 994, [2010] 1 FLR 1728. In private law proceedings it is the court that is defining an aspect of parental responsibility in its determination of the arrangements that are put in place for the child and findings of fact are appropriate, where necessary, to inform that process by reference to the factors in section 1(3) of the 1989 Act and in particular where safety issues have arisen which justify the court's interference with the article 8 ECHR rights of the family members. In public law children cases where a care order is in issue, the court is being asked to sanction an agency of the state, namely the local authority, being permitted to exercise parental responsibility for a child. The jurisdiction in the court to undertake that task has to be based upon the existence of facts (primary and / or secondary) that satisfy the threshold in section 31 CA 1989. Accordingly, concessions or findings of fact relevant to the threshold question will always be necessary in public law cases alongside such further findings of fact as are necessary to inform the welfare evaluation.

[29] It ought to be recollected that split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is inappropriate. The oft repeated but erroneous justification for them that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice. The justification comes from an era before the present Rules and Practice Directions came into force and can safely be discounted in public law children proceedings save in the most exceptional case.'

In the second, Re S (Children W & T) [2014] EWCA Civ 638, [2014] 2 FLR (forthcoming) the President endorsed the views expressed by Ryder LJ in Re S (Split Hearing).

'[71] My first concern relates to the decision that there should be a separate fact-finding hearing. I make no criticism of those involved, who were conforming with what was then understood to be appropriate practice. But for the future judges and practitioners considering the use of a separate fact-finding hearing in a care case must bear in mind the current approach, which is to discourage their use except in a relatively limited group of cases. In Re S (Split Hearing) [2014] EWCA Civ 25, Ryder LJ made clear, para [29], that a split hearing in a care case will usually be appropriate only in either "the most simple cases where there [is] only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made" or "the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child." He went on, "For almost all other cases, the procedure is inappropriate." I agree. This is not the kind of case in which, in future, a split hearing should be ordered.'

The broad principle of Re S (Split Hearing) seems unexceptional - of course a Court ought not to embark upon a finding of fact hearing without being clear as to the benefits of doing so and whether those benefits outweigh any risk. The requirement that split hearings now are only required in exceptional cases is not so straightforward, however.

One also has to look at the two particular examples that the Court of Appeal said were unsuitable cases for a split hearing from now on.

In Re S (Split Hearing), the split hearing was to resolve: (a) whether injuries to a child were deliberately inflicted , caused recklessly or an accident; and (b) if one of the former two options whether the Court could identify the role that each parent played. The parents denied having caused the injury. The injuries were two skull fractures and associated bleeding on the brain.

In the second case, Re S (Children W & T) the split hearing was to resolve whether the mother's partner had sexually assaulted the 14-year-old sister of the mother (including an alleged rape) and whether the allegation that the mother had been present and participated in the assault was proven. The findings would have a considerable impact on the children concerned in the proceedings, who were four and three years old. The mother and her partner strongly denied the allegations.

It will be readily seen that these were not trivial allegations for which findings were sought, and that considerable consequences would flow from the making of findings, including the level of risk that might be posed to the children concerned in the future.

The fact that the Court of Appeal used those two types of cases to illustrate that finding of fact hearings were now profoundly discouraged (rather than a less serious form of allegation) means that they are very serious about this principle. When Ryder LJ says ‘... the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is inappropriate' there is no reason to believe that the Court of Appeal are about to waver in that view. Any split hearing embarked upon after the publication of these cases will carry a degree of risk, if there were to be an appeal for any other reason, of the Court of Appeal being very critical of all involved in that decision.

As a result, nearly 20 years of authorities in relation to split hearings appear to be being swept aside.

The Court of Appeal have not specifically overturned Re L (Care proceedings: Risk Assessment) [2009] EWCA Civ 1008, [2010] 1 FLR 790 in which the Court of Appeal were mindful that faced with even the most appalling findings, there was still a need for an assessment taking account of those findings. (That two stage process of course disappears if one no longer holds a split hearing.)

We are in a new world, with new pressures on resources and new tools for Courts to use. Although the Court of Appeal have not (yet) said this in terms, reading between the lines, the justification for having a split hearing in a case would seem to be almost as high a justification as having leading counsel instructed in the case - both are going to be for highly exceptional cases.

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The obvious consequence is that more cases that involve allegations of serious physical injury or sexual abuse are going to get to final hearing (and more importantly final evidence) with there being uncertainty about those allegations. They are likely to remain the subject of dispute at the time that the Local Authority have to file their final evidence, and the Court will determine those allegations alongside other welfare issues.

The Court of Appeal recognise that the parties are going to have to file evidence that provides for alternative findings. That might be achievable, if difficult, where the finding is a discrete binary one - either father did X, or he did not.

Where the findings become more complicated though, and the range of decisions that a Court might take on them becomes more varied, the amount of contingency decisions and recommendations and plans begin to grow exponentially.

Just taking the second Re S for a moment - here are the possible findings that a court could make about the allegations:

(i) That no sexual assault took place

(ii) That there was no attempted rape, but there was an indecent assault by the mother's partner, and that mother was not involved

(iii) That there was no attempted rape, but there was an indecent assault by the mother's partner and that mother was involved, and did do what was complained of

(iv) That there was an attempted rape and an indecent assault, but mother was not involved

(v) That there was an attempted rape and an indecent assault and that mother was involved and did do what was complained of

If those findings were made at a split hearing, there would then be a pause to take stock, possibly for concessions to be made, possibly for a decision about whether the couple would remain together or separate, possibly for treatment, almost certainly for risk assessment.

In our new post Re S world though, the court would have to consider all of those findings above, together with these additions:

(vi) Do the factual determinations amount to a conclusion that the mother's partner poses a risk of sexual harm to the two children in these proceedings?

(vii) Does the mother herself pose a risk of sexual harm to her two children?

(viii) Can the mother protect from any risk?

(ix) Can any risk be managed safely for the children?

(x) Can any necessary chances be carried out within the children's timescales?

And the local authority will need within their evidence to contemplate and plan for the full range of possible findings and conclusions. It might not be considered very likely that a court would find all of the 14 year old's allegations proven and then go on to consider that mother could be safe around her own children, but it is possible, and that's exactly the sort of issue that the Court of Appeal was facing in Re L.

If the Court at final hearing were to go on to make findings in the combination of (ii) and (vi) above (that the mother's partner did assault the child but that mother was not there) and mother's stated position is 'If there are findings made against my partner, I would end the relationship', how exactly is the Court supposed to resolve findings (viii) to (x) inclusive?

There will be no passage of time - in fact, by the time the mother is aware that findings (ii) and (vi) have been made against her partner, it will be when the Judge is reading out the final judgment.

Is the judge to give the mother the benefit of the doubt that she will do what she said she would do in her statement, and leave her partner the instant that findings are made and never look back? In which case, presumably the right order is a Supervision Order.

Or is the Judge to be cautious about whether mother, having got as far as the final judgment, some six months or more after the events complained of and still being in a relationship with her partner, would separate or could sustain that separation? If so, that might end up being a Care Order or Placement Order.

Because the obvious, compelling thing to do - give everyone chance to take stock of the findings, and assess mother's future actions on the basis of what she DOES in the here and now and how those findings change her attitude and insight, just amounts to a split hearing. A split hearing that takes place at week 26, rather than earlier on.

It does seem that in removing split hearings, there's an attendant risk that the problems that this causes might simply be pushed back later in time.

Some specific scenarios - again, based on the second Re S allegations:

1. Family members

A family member comes forward to care for the children, and they would be excellent carers, however, they are utterly unable to accept that the mother or her partner could possibly have done what they are accused of, and there are serious question marks over their ability to act protectively. Without knowing how they would react once the findings are made, can the local authority properly put them forward as their care plan? Conversely, is it fair to reject them on the basis of what they say PRIOR to the Court resolving the matter? They might very well have a different view of the risks if rather than hearing them from a social worker they were able to read the Judge's careful analysis and conclusions.

Some relatives might not even get past viability stage, if they are vehement about the mother's innocence.

2. The Agency Decision Maker

If the local authority are to put forward a plan of adoption (which might very well be one of their proposals in a case like Re S, working on the basis that the Court make all of the most serious findings, they have to present the case to their Agency Decision Maker. This person, generally a very senior manager in the Local Authority, has to decide that he or she is satisfied that adoption is the right plan because 'nothing else will do' and has to give reasons in accordance with Hofstetter and Hofstetter v London Borough of Brent [2009] EWHC 3282 (Admin), [2010] 2 FLR 413.

It is important to note that a decision that adoption is the right plan and authorisation of the application for a Placement Order cannot be conditional (the ADM cannot say 'I decide that adoption is the right plan for these children, IF and ONLY if, the Court makes THESE specific findings'

If the Agency Decision Maker decides that the most serious findings will not be made, it is likely that they would conclude that they cannot be satisfied that "nothing else will do" and not authorise a Placement Order application.

If they try to use skill and judgment to ‘estimate' what the most likely findings are, they are assuming a ‘quasi-judicial role' and getting into murky territory in determining a factual dispute, even if only to their own satisfaction.

If they decide that the most serious findings might be made, and make their decision on that basis, then there will be criticism that they took the dimmest view possible of the case, didn't give enough emphasis to the possibility of other findings, and if the findings are a ‘mixed bag' those representing the parents might well want the ADM to reconsider the case to see whether the PARTICULAR findings made would result in that ADM decision.

The Courts have not yet been troubled with an appeal following the legislation that removed Adoption Panels from this process, but that clearly put a higher burden on the ADM's shoulders, and there is far more scrutiny on the ADM's decision-making process than there had been before.

3. The social worker's oral evidence

Given that the social worker will be expressing a range of possible care plans, based on the various risks that might be found (ranging from indecent assault where mother knew nothing and will now leave her partner right up to all allegations proven and the children being at grave risk of sexual harm), they will be cross-examined not only about what findings should be made on the evidence, but on their assessment of risk based on the range of potential findings AND what orders should arise as a result.

It is almost inevitable that cross-examining a social worker on one plan (with which a parent disagrees) takes less time than cross-examining them on seven plans (two of which might be wholly acceptable, two are wholly unacceptable and three might be tolerable with some changes and additions).

Where next?

Well, I would not be putting any money on the Court of Appeal reversing their direction of travel. Even in the event that they are faced with an appeal from a case where factual allegations were decided at final hearing and a situation of 'Can open, worms everywhere' ensues, I suspect this will be blamed on insufficiently robust case management rather than the Re S principles being difficult to operate in practice.

Therefore, we will either be doing without split hearings (in anything other than the most extreme cases) and spending final hearings wondering whether an adjournment post-judgment will be granted, or turning something of a blind eye to Re S (on the basis that the parties and the Court will all prefer to go into the final hearing with the facts settled) or possibly litigating these factual disputes by way of contested interim care order hearings (using ‘the child's safety requires immediate or continued separation' as the matter under dispute and urging the Court to make findings as to HOW that conclusion is reached on the balance of probabilities).

Andrew Pack is a care lawyer at Brighton and Hove City Council and their in-house advocate. He has also represented parents in care proceedings.

He is the creator and author of the Suesspicious Minds child law blog, which deals with public law, private law, social work, serious case reviews and Court of Protection cases - www.suesspiciousminds.com. Andrew can also be contacted via Twitter at @suesspiciousmin.

Andrew was shortlisted for the Family Law Commentator of the Year Award at the 2013 Family Law Awards.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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