Court of Appeal dismisses appeal over refusal of judge to direct fact-finding hearing in relation to death of mother's first baby

In G (A Child: Scope of Fact-Finding) [2025] EWCA Civ 1044 (31 July 2025), Lord Justice Peter Jackson concluded that the judge had taken “all relevant factors into account” – including the “reality of the case” that the baby had been in her mother’s care since birth and that the process of investigation itself would be “exceptionally lengthy and onerous”.

The case concerned a young mother whose second child was the subject of care proceedings. Her first child had died six and a half years earlier, at a time when she was herself a child.

In May 2025, His Honour Judge Willans, sitting as a Deputy High Court Judge, decided not to direct a fact-finding hearing into the death of the mother's first baby.

The local authority and the children's guardian appealed, arguing that the court would be “unable to adjudicate upon the potential dangers to the subject child arising from her mother” and prevented itself from making an “informed decision” on the risk of harm to her.

Introducing the case, Lord Justice Peter Jackson said: “In Re H-D-H (Children), Re C (A Child), [2021] EWCA Civ 1992; [2021] 4 WLR 106, it was said that decisions about the scope of fact-finding are core case management decisions with particular consequences for the length and cost of proceedings, the impact of the litigation on parties and others, and the allocation of court time. It was confirmed that the long-standing approach set out in the Oxfordshire case (A County Council v DP [2005] EWHC 1593 (Fam); [2005] 2 FLR 1031) remains valid and that the factors it identifies should be approached flexibly in the light of the overriding objective of doing justice efficiently in the individual case.”

He added: “Decisions about whether to investigate particular events are not always easy and the factors typically do not all point the same way: most decisions will have their downsides. Overall, the court must ask itself whether its process will do justice to the reality of the case. It should be able to make its ruling quite concisely by referring to the main factors that bear on the individual case, and identifying where the balance falls and why. The reasoned case management choice of a judge who approaches the law correctly and takes all relevant factors into account will be upheld on appeal unless it is shown that something has gone badly wrong with the balancing exercise.”

Peter Jackson LJ accepted that the appellants’ arguments were logically reasoned and “might have prevailed” in another case.

However, dismissing the appeals, he concluded: “This was a difficult and intensely case-specific decision. The proceedings were at week 18 and there had been five hearings, all conducted by the judge himself. He was therefore familiar with the mass of evidence about the family history over the years, and with the shape of the case, by which I mean the range of realistically possible outcomes and the means by which they might be reached. In short, he had a feel for the case. He directed himself correctly in law and he took all relevant factors into account.

“[…] The reality of the case included the fact that this baby has been in her mother's care since birth and that there is no present intention to separate them; further, that the process of investigation itself would be exceptionally lengthy and onerous. I consider that the judge's decision was one that was open to him and that, taking account of the latitude that is due to informed judicial case management, it was at all events not wrong.”

In a dissenting judgment, Lord Justice Baker said the first instance judge had been wrong for several reasons.

He said: “In most cases, the magnetic factors in deciding whether or not to allow a further fact-finding hearing are likely to be the necessity or otherwise of the investigation and the relevance of the potential result of the investigation to the future care plans for the children. If the investigation is unnecessary, and the result of it irrelevant to the future care plans, it would obviously be wrong to hold a fact-finding hearing.

“The only reason for holding a fact-finding hearing is to facilitate welfare decisions about the child. Where the investigation and its potential result are of marginal relevance to the future care plans, the arguments for fact-finding hearing may be outweighed by other factors, such as the time that the investigation will take and the likely cost to public funds. But where the potential result of the investigation is of the utmost importance to the future care plans for the child, it is difficult to think of circumstances in which that factor would be outweighed by any of the others.”

In Baker LJ’s view, this case fell into that category. He said: “There are a number of arguments against holding a fact-finding hearing. They include the delay in making decisions about how X’s future welfare needs will be met, the costs that will be incurred, the fact that the passage of seven years since Z’s death may impinge on the quality of the evidence, and the impact on the mother, and resultant impact on X.

“But those factors are outweighed by the importance of securing a sound basis for making the decisions about X’s future. I note that, whilst acknowledging the concerns about ‘the very serious delay in the case, the substantial costs and the profound likely impact on the mother with resultant likely impact on X and the care given to that child’ and the ‘residual concerns as to the fairness of any hearing’, the judge reached his conclusion on the basis of his views about the necessity of a fact-finding hearing and the impact the same would likely have on the future planning for the child. He observed that ‘in the final analysis these are the magnetic features.’ I agree that they are the magnetic features, but for the reasons set out above I have reached the opposite conclusion about them.”

Lord Justice Bean said: “This was not an easy decision and there were indeed factors pointing both ways, as shown by the fact that Peter Jackson LJ and Baker LJ have taken different views about the outcome of this appeal.

“To my mind this is a case where the principle set out in Re H-D-H should be applied. The judge approached the law correctly and took all relevant factors into account in the balancing exercise. I do not consider that it has been shown that he was wrong, still less 'badly wrong'. Accordingly, and for the reasons set out more fully by Peter Jackson LJ, with which I agree, I would dismiss the appeal.”

An application for permission to appeal has been lodged with the Supreme Court.

Lottie Winson