Split hearings – Ryder LJ clarifies the guidance and opines on the term “non-accidental injury”

06 Feb

The President’s Guidance on split hearings (May 2010) has now been augmented by Ryder LJ’s guidance on split hearings within public law proceedings in the recent case of: Re S (A Child) [2014] EWCA Civ 25, which considered the appropriate use of split hearings within public law proceedings. This case assists, as sets out clearly the criteria that need to be met.

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Non-accidental Injury

The President’s Guidance on split hearings (May 2010) has now been augmented by Ryder LJ’s guidance on split hearings within public law proceedings in the recent case of: Re S (A Child) [2014] EWCA Civ 25, which considered the appropriate use of split hearings within public law proceedings. This case assists, as sets out clearly the criteria that need to be met. In bullet points:-

•    Not appropriate to have a “split hearing” where discrete facts are severed off from their welfare context, i.e. split hearings should be used only in cases where an early conclusion on a stark or discrete issue, will enable the substantive determination to be made more expeditiously. 
•    Split hearings should be used where the threshold criteria would not be satisfied if a finding could not be made in the most simple of cases, thereby concluding the proceedings, or in the most complex medical causation cases where death or very serious medical issues have arisen and an accurate medical diagnosis is integral to the future care of the child.
•    Unless the basis for such a decision is reasoned so that the consequent delay is justified, split hearings will be wrong in principle in public law proceedings.
•    Even when it is asserted that delay will not be occasioned, the use of split hearings should be kept to cases whether there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination to be made more expeditiously.
•    It should not be argued and it is inappropriate to argue that a split hearing is required to enable a social care assessment to be undertaken.
•    N.B. a decision about a split hearing is a case management decision and therefore invokes Part 1 of the FPR 2010 and Pilot PD 12A. It is only justifiable where delay is in furtherance of the overriding objective. The decision should be considered at the CMH and reasons should be recorded on the face of that order, as well as the issue to be tried.

Summary of Ryder LJ’s reasoning for the above very tight criteria for a split-hearing:

•    To remove consideration by the court of the background and contextual circumstances, the reliability of evidence and welfare factors, such as capability and risk deprives the occur to the very material upon which findings as to primary fact and social welfare concern are often based and tends to undermine the safety of the findings thereby made.
•    May adversely impinge on the subsequent welfare and proportionality evaluations by the court as circumstances change and memories fail of the nuance and details of evidence given weeks or months before.

He also gives a view on the use of “non accidental injury”. Whilst saying he does not criticise the term, he goes on to be fairly scathing as to its ubiquitous use:

” The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).” (Paragraph 19 of Judgment)

Click HERE to read the case in full.

Any comments welcomed as always!

Zosia Keniston

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