Clarifying “Necessity” in Fact-Finding Hearings:
The Material-Impact Test Confirmed in G (A Child: Scope of Fact-Finding) [2025] EWCA Civ 1044
1. Introduction
G (A Child: Scope of Fact-Finding) presents the Court of Appeal’s most detailed consideration for a decade of when a family court must, or need not, embark upon a laborious historical fact-finding exercise in public-law children proceedings. Two appeals were brought by the Local Authority and the Children’s Guardian after a Deputy High Court Judge declined to order a fact-finding hearing about the violent death of the mother’s first baby seven years earlier. The Court (Peter Jackson and Bean LJJ forming the majority; Baker LJ dissenting) dismissed the appeals and upheld the judge’s decision.
The case is remarkable not only for its tragic facts, but because it refines the principles distilled in Oxfordshire CC v DP and confirmed in Re H-D-H: a court should order fact-finding only if the result is necessary to achieve a just and proportionate welfare determination for the child before it. G clarifies that the touchstone of “necessity” is whether the proposed findings would be likely to alter the range of realistic welfare outcomes. Where they will not, the court may – and often should – decline the inquiry, notwithstanding the seriousness of the historical allegations.
2. Summary of the Judgment
The holding in brief
The majority held that the trial judge exercised his case-management discretion impeccably:
- He directed himself accurately on the governing authorities (Oxfordshire, Re H-D-H, Re H, Re B).
- He considered all relevant factors: delay, cost, evidential reality, fairness, and – critically – whether a finding about past harm would materially influence care planning for the living child, X.
- On the evidence, a year-long fact-finding hearing about Baby Z’s death would not materially change the risk analysis or available orders; therefore it was unnecessary.
- Unless the appellate court could say that no reasonable judge could reach that conclusion, it must not interfere.
Consequently, the appeals failed; the care proceedings concerning X continue without a separate trial of Z’s death.
Baker LJ dissented. He considered that the alleged fatal shaking of a previous child is so grave that risk assessment for X cannot responsibly proceed until the truth is ascertained to the civil standard. In his view, “any risk assessment carried out in such circumstances would be unfair and dangerous to the child.” He would have ordered a fact-finding hearing before a different judge.
3. Detailed Analysis
3.1 Precedents Cited and Their Influence
- Oxfordshire CC v DP & Ors [2005] EWHC 1593 (Fam)
Origin of the nine “Oxfordshire factors” for deciding whether to direct separate fact-finding. G re-affirms both their utility and their flexibility. The Court stresses that while all factors matter, necessity and materiality usually dominate. - Re H-D-H & Re C [2021] EWCA Civ 1192
Confirmed that fact-finding is a “core case-management decision” to be upset on appeal only if the judge’s balancing exercise goes “badly wrong”. G applies that deferential approach. - Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 & Re B (Children) [2008] UKHL 35
Authorities for (a) the meaning of “likely” (a real possibility); and (b) the binary nature of fact-finding. The appellants relied on them to argue that risk assessment must rest on proven facts, not suspicions. The majority distinguished: the court is not using suspicion as a factual basis, but deciding that proving the historic allegation adds nothing material to current risk analysis. - Re T (Risk Assessment) [2025] EWCA Civ 93
Sets out the four-part risk-assessment questions (type, likelihood, consequence, mitigation). G shows how those questions may be answered adequately without litigating every historical allegation.
3.2 The Court’s Legal Reasoning
- Core Question Framed
Would care-planning for X “in fact or in all likelihood be materially different” if the court made findings on Z’s death? - Evidence-Based Projection
The judge examined the likely product of a fact-finding exercise – at best, a finding of an impulsive shaking episode by a teenage mother seven years ago. That added little, because present assessments already incorporated the mother’s volatility and need for support. - Current Plan Already Protective
X was thriving in her mother’s care within a supported placement; no plan for separation existed. The local authority had managed risk thus far without the finding. This practical reality undermined claims of necessity. - Proportionality and Overriding Objective
A year’s delay, massive public cost, and emotional toll on both mother and child would be disproportionate unless the outcome was critical. Article 8 (right to family life) proportionality loomed in the background. - Appellate Deference
Applying Re H-D-H, the majority held they could intervene only if the balancing exercise was plainly wrong. It was not.
3.3 Impact on Future Cases
G recalibrates the threshold for ordering historical abuse inquiries:
- Introduces the “Material-Impact Test”: the probability that the findings will alter the range of realistic welfare outcomes must be demonstrable.
- Endorses a pragmatic, child-focused lens: courts may assume a contested allegation is proven for the limited purpose of testing whether it really matters.
- Strengthens appellate non-interference in case-management: unless the judge’s weighing of Oxfordshire factors is perverse, the Court of Appeal will not second-guess it.
- Encourages front-loaded risk work on current behaviours rather than historical forensics where the link to present danger is attenuated.
- However, the powerful dissent signals that where the alleged past harm is extreme (infant death) some appellate judges still lean towards full fact-finding. Future litigants will cite both strands; trial judges must give especially robust reasons when refusing fact-finding in such high-gravity cases.
4. Complex Concepts Simplified
Binary Fact-Finding
Courts can only say an allegation is proved or not proved; there is no in-between “possibly”. This flows from the civil standard of proof (balance of probabilities) described as a “binary system”.
Fact-Finding Hearing
A separate mini-trial within care proceedings where the court hears live evidence, often from medical experts, to decide disputed historical events (injuries, sexual abuse, neglect).
Oxfordshire Factors
Nine considerations (interests of the child, delay, cost, evidential result, necessity, relevance, impact on parties, fairness, justice) guiding whether to order fact-finding.
“Material impact”
Will the proposed findings change the available welfare outcomes (e.g., rehabilitation, long-term fostering, adoption) or merely add detail?
Re T Risk Questions
- Type of harm?
- Likelihood?
- Consequences if it happens?
- Can risks be reduced or managed?
G confirms that these can sometimes be answered without revisiting every past allegation.
5. Conclusion
G (A Child) is now the leading authority on when not to hold a fact-finding hearing. It crystallises a Material-Impact Test: courts must ask whether the disputed historical facts, if established, would realistically alter risk analysis and welfare outcomes. If the answer is “no”, the heavy burdens of a retrospective trial – delay, cost, stress, diversion from present-day assessment – are disproportionate and unjustified. The decision reinforces judicial discretion in case management and encourages professionals to focus on current parenting capacities and supports.
The split within the Court of Appeal – with Baker LJ warning that failing to decide grave allegations could be “dangerous to the child” – ensures that debate will continue. Nevertheless, unless and until the Supreme Court intervenes, G (A Child) provides a powerful precedent for avoiding historical inquisitions that will not materially inform the child’s future.
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