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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> SW v SW & Anor [2008] EWHC 1890 (Fam) (31 July 2008) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2008/1890.html Cite as: [2008] EWHC 1890 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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S W |
Appellant |
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S W |
Respondent |
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D W-W |
2nd Respondent |
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Mr Christopher Miller (instructed by Hodge, Jones & Allen) for the 1st Respondent
Ms Melanie Carew (of CAFCASS) for the 2nd Respondent.
Hearing dates: 16th July 2008
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Crown Copyright ©
"In my view a judge in family cases has a much broader discretion…to conduct the case as is most appropriate for the issues involved and the evidence available… 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 oral 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."
Then at paragraph 31 of his judgment Wilson, LJ comments –
"At 6A-D Butler-Sloss, LJ indicated that, in deciding whether to conduct a full investigation with oral evidence, a judge should consider:
1. (a) whether there was already sufficient evidence to make the decision;
2. (b) whether the proposed further evidence was likely to affect the outcome of the proceedings;
3. (c) whether the opportunity to cross-examine witnesses was likely to affect the outcome;
4. (d) whether a full investigation, including any consequential delay, would be injurious to the welfare of the child;
5. (e) whether the applicant for a full trial had real prospects of success; and
6. (f) whether the justice of the case required a full investigation."
And then, if I may respectfully say so, helpfully explains the relevant principle at paragraph 33 –
Judges exercising jurisdiction in relation to children have, in my view, a broader discretion in the mode of the conduct of the hearing than do judges in the exercise of a conventional civil jurisdiction. Put another way, the sort of hearing which might be adjudged unfair, and therefore unlawful, in an ordinary civil context may, nevertheless, be lawful in a child context. The difference is largely attributable to the fact that, although of course the welfare of the child is not the paramount consideration in the judge's determination as to how to conduct the hearing, it is a relevant consideration; and that, unless to do so is essential to a proper determination of future arrangements for him, the child's welfare will not be served by taking a course likely to fan the flames of the animosities of the adults who surround him. Furthermore this court must consistently strive to be imaginative about the reasons, often deliberately left unexpressed at least in part, why a trial judge in a child case takes a particular decision, whether substantive or procedural; and it must also be constantly alive to the need, and even in the absence of need at any rate to the entitlement, of the judge often to act robustly in the exercise of this jurisdiction.
That then, provides the legal framework for determining whether oral evidence is required.