Court of Appeal
Published August 29, 2008

In re R (Family dispute: Evidence)

Judges conducting preliminary fact-finding hearings in family proceedings involving serious allegations of domestic violence should never terminate the case without hearing all the available evidence.

The Court of Appeal (Lord Justice Thorpe, Lord Justice Wall and Lord Justice Stanley Burnton) so stated on July 17, 2008, when allowing the appeal of the mother of the child, R, from the judgment of Judge Milligan in Southampton County Court on April 17, 2008.

A retrial of the father’s application for a residence order was ordered on the ground that the judge had accepted a submission that the mother had not discharged the burden of proof and dismissed the case on a “no case to answer” basis without hearing the father’s evidence.

LORD JUSTICE THORPE said that the principles which governed a submission of no case to answer in criminal proceedings and in civil law were clear. In public law, such a submission had no place: see In re Y and K ([2003] EWCA Civ 669) and In re F ([2007] EWCA Civ 810).

In family law cases it was desirable to give clear guidance to judges conducting preliminary fact-finding hearings that it was not appropriate to accept a submission of no case to answer.

The judge had risked derailing the whole future of the case based simply on his conclusion that the mother had lied. The obligation to hear out the whole case derived from the court’s duty to the child.

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