W v J
[2024] EWFC 352 (B)
GM & Anor v EB & Anor (Rules of Evidence)
12 February 2024
[2024] EWHC 288 (Fam)
High Court
Grandparents appealed a court order limiting their contact with their grandchild. The court agreed the hearing was unfair because the child's mother made serious accusations against the grandparents right before the decision, giving them no time to defend themselves. The case will be heard again by a different judge.
Key Facts
- •Appeal against an order of HHJ Walker granting indirect contact between appellants (paternal grandfather and step-grandmother) and their grandson, P.
- •Father of P is imprisoned for murder; mother has a conviction for assisting an offender.
- •Appellants had regular contact with P until approximately 2021.
- •Mother repeatedly failed to comply with court orders regarding contact with father and appellants.
- •CAFCASS report recommended indirect and then direct contact between appellants and P.
- •Mother submitted two documents at the final hearing containing serious allegations against appellants, including aiding a breach of bail conditions, which were not disclosed beforehand.
- •Appellants were given limited time to respond to the new allegations.
- •Judge's decision relied heavily on the mother's last-minute allegations.
- •Judge found appellants to be 'arrogant', 'domineering' and 'supercilious'.
Legal Principles
Natural justice
Common law
Overriding Objective (FPR r.1.1)
Family Procedure Rules 2010
Article 6 ECHR (right to a fair trial)
European Convention on Human Rights
Equality of arms
ECtHR case law (Dombo Beheer BV v The Netherlands, Mantovanelli v France)
Court's power to control evidence (FPR r.22.1)
Family Procedure Rules 2010
General rule for evidence of witnesses (FPR r.22.2)
Family Procedure Rules 2010
Service of witness statements (FPR r.22.5)
Family Procedure Rules 2010
Statements of truth (FPR r.17.2, 17.4)
Family Procedure Rules 2010
Fair hearing leading to legally valid decision
Supreme Court case law (Serafin v Malkiewicz), Court of Appeal case law (P (A Child)(Fair Hearing))
Outcomes
Appeal allowed
The proceedings were unfair due to the late introduction of serious allegations, insufficient time to respond, and lack of adherence to the Family Procedure Rules 2010 regarding evidence.
Judge's order set aside
The unfairness affected the outcome of the hearing.
Matter remitted to a different judge for rehearing
To ensure a fair hearing.