Strand, London, WC2A 2LL
B e f o r e :
| The London Borough of Tower Hamlets
|- and -
C (a child by his guardian ad litem)
|Re C (A Child) No. 3 (Application for dismissal or withdrawal of proceedings)
Chris Barnes (instructed by FMW Law) for the mother
Mark Twomey QC and Kieran Pugh (instructed by Warrens Family Law) for the father
Tim Parker (instructed by Gary Jacobs and Co.,) for the Children's Guardian
Hearing date: 20 June 2017
Crown Copyright ©
Mrs Justice Pauffley :
Dismissal or withdrawal the argument
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
"We reject Mr Munby's contention that an applicant in all applications for which leave is not required is entitled to a full trial unless only the respondent can satisfy the stringent test required to justify striking out proceedings in ordinary civil litigation. In the first place, as Balcombe LJ said in the passage already cited from Re A and W [(Minors) (Residence Order: Leave to Apply)  Fam 182,  2 FLR 154]: 'this is not ordinary civil litigation: it concerns children. In our judgment that is a salutary observation and it would be unwise in this jurisdiction to seek to restrict the discretion of the court by imposing a rigid formula upon the conduct of proceedings."
"In cases that do not fall within the limited Cheshire County Council v. M category, the court nonetheless has a broad discretion to conduct the case as is most appropriate for the issues involved and the evidence available (Re C (Contact: Conduct of Hearings)  2 FLR 289, CA). Indeed, the overriding objective in FPR 2010, r.1.1(2)(b) requires the court to deal with cases in ways that are proportionate to the nature, importance and complexity of the issues. In family proceedings, a judge has an inquisitorial role and his duty is to further the welfare of the children, which is his paramount consideration. For that reason, he exercises a far broader discretion than in a civil jurisdiction to determine how an application should be pursued (Re C (Family Proceedings: Case Management)  1 FLR 1089, CA). It will not necessarily hold a full hearing with the parties permitted to call oral evidence and cross-examine any witnesses they may choose. Applications for child arrangements orders to determine with whom a child will live, care orders or for the revocation of a care order are likely to be decided on full oral evidence, although not invariably; applications for contact may be and are heard sometimes with, and sometimes without, oral evidence or with a limited amount of oral evidence."
"In my view a judge in family cases has a much broader discretion both under the Children Act 1989 and previously to conduct the case as is most appropriate for the issues involved and the evidence available (see the judgment of Sir Stephen Brown P in W v. Ealing Borough Council (above)). There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.
" The considerations which should weigh with the court include:
(1) whether there is sufficient evidence upon which to make the relevant decision;
(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;
(3) whether the opportunity [to] cross-examine the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;
(4) the welfare of the child and the effect of further litigation whether the delay in itself will be so detrimental to the child's wellbeing that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children ;
(5) the prospects of success of the applicant for a full trial;
(6) does the justice of the case require a full investigation with oral evidence?"
 "It is important to recognise the nature of the proceedings before [the circuit judge]. These were family proceedings, not ordinary civil proceedings where the function of the judge is in large part to act as the umpire determining the competing cases put before him by the litigants. In ordinary civil litigation the circumstances in which a judge can prematurely stop a case are limited, albeit less limited now in accordance with the Civil Procedure Rules 1998 than was once upon a time the case. But these are not ordinary civil proceedings, they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised and authority need not be quoted for this proposition that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as [the circuit judge] did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence."
 "The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercise of his discretion so to decide and to determine that the proceedings should go no further."
Dismissal or withdrawal discussion and conclusion
Factors to be considered upon a withdrawal application
(a) The authors of the Family Court Practice 2017 consider that this is a decision to which the paramountcy principle applies.
(b) In Redbridge Borough Council v B, C & A  2 FLR 117 Hedley J held at para 9 that where threshold could be established the withdrawal application "would depend upon the Court concluding under s.1(5) Children Act that no order was necessary; that is to say on the basis that withdrawal was consistent with (my emphasis) the welfare needs of [the child]".
(c) In A County Council v DP, RS & Ors  EWHC 1593 (Fam): McFarlane J held (at para 24), on his analysis of the authorities, that the interests of the child were relevant but not paramount (albeit pre FPR 2010); and
(d) In Lancashire County Council v NG, DG & Ors  EWHC 4648 (Fam) Cobb J (at para 35) added a cross-check against welfare.
a) The interests of the child;
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.
Overall outcome - discussion and conclusion
Interests of the child
The time the investigation will take
Likely cost to public funds
The evidential result
Necessity or otherwise of the investigation
Relevance of the result to future care plans
Justice of the case