A (A Minor: Proceeding in the absence of a party: Application to set aside) (No. 2), Re

A is a five-year-old girl who is at the centre of a dispute between her separated parents. Her father applies to the court for orders that secure A living with him or to spend time with him. These applications are opposed by her mother who makes very serious allegations against the father. In August 2024, the court listed the case for a fact-finding hearing to determine the mother’s allegations. Ultimately the fact-finding hearing commenced on 10 March 2025. The father did not attend the hearing and the matter proceeded in his absence. The father now applies to set aside those decisions, asks for permission to cross examine key witnesses and to adduce further evidence before the court.

In my judgment dated 10 March 2025, I have set out the relevant background to this case, a procedural chronology together with my reasons for reaching my decisions. I will not repeat those in this judgment which should be read together with the said earlier judgment.

In the unusual circumstances of this case, the father’s application raises important and fundamental procedural issues that may be summarised as:

The relevant body of procedural rules governing the court’s powers, practice and procedure are set out in the Family Procedure Rules 2010 (‘FPR10’). As I have observed in my earlier judgement, the court must apply the rules consistently with the overriding objectives that are set out in Part 1. In summary it provides that the court must deal with cases “justly” which includes the case being dealt with “expeditiously and fairly,” proportionately in accordance with “the nature, importance and complexity of the issues,”“ensuring that the parties are on equal footing,” “saving expense” and allotting “appropriate court resources”.

The court’s wide ranging general case management powers are set out in part 4 of the FPR10 and among the several specified powers it includes power to:

“4.1

…

(3)…

(c)

adjourn or bring forward a hearing;

…

(k)

decide the order in which issues are to be heard;

(l)

exclude an issue from consideration;

(m)

dismiss or give a decision on an application after a decision on a preliminary issue;

…

(o)

take any other step or make any other order for the purpose of managing the case

…

(5)

Where the court gives directions it will take into account whether or not a party has complied with any relevant pre-action protocol.

(6)

A power of the court under these rules to make an order includes a power to vary or revoke the order.

(7)

Any provision in these rules –

(a)

requiring or permitting directions to be given by the court is to be taken as including provision for such directions to be varied or revoked; and

(b)

requiring or permitting a date to be set is to be taken as including provision for that date to be changed or cancelled.”

Part 27 of the FPR more specifically addresses court hearings and directions appointments. As I have detailed in my earlier judgment, r. 27.4 addresses “proceedings in the absence of a party”. If, pursuant to the aforementioned rule the court proceeds in the absence of a party, the absentee party may apply under r. 27.5 to set aside the judgment or orders made against him. The said rule provides that:

“(1)

Where a party does not attend a hearing or directions appointment and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(2)

An application under paragraph (1) must be supported by evidence.

(3)

Where an application is made under paragraph (1), the court may grant the application only if the applicant –

(a)

acted promptly on finding out that the court had exercised its power to enter judgment or make an order against the applicant;

(b)

had a good reason for not attending the hearing or directions appointment; and

(c)

has a reasonable prospect of success at the hearing or directions appointment.”

In a recent decision by the Court of Appeal in K and D (Children: Sexual abusefindings) [2025] EWCA Civ 263 the provisions of the latter said rule was identified as the correct route to challenge a decision that was made in the absence of a party. However, in the family jurisdiction there is no other guidance on the approach to such applications. In the course of their submissions, the parties have referred me to a number of helpful authorities that have developed in the civil jurisdiction. I will address these below.

The following is a chronology of the relevant recent events:

The parties have each made detailed written and oral submissions in the course of which, and in my exchanges with counsel, their respective positions have further crystalised and are summarised herein.

Mr Griffiths submits on behalf of the applicant father that his primary position is that he has made the correct application pursuant to r. 27.5 to set aside the court’s earlier decisions and his case amply satisfies the requirements of the three limbs that are set out in r. 27.5 (3). He argues that the father has acted promptly in making his application, he has very good reasons for not attending the hearing as detailed in his statement filed in support of his application and that he has every prospect of success in a case where the majority of the evidence supporting the mother’s allegations is circumstantial and based on opinion. The overriding objective requires the court to deal with cases justly and justice demands that the father is given an opportunity to cross examine the mother, the officer in the case and to give evidence about the very serious allegations. If the allegations are found, they may have a profound impact on his life and his relationship with his daughter whose rights are also engaged and potentially compromised if the father’s application is not granted. As his secondary position, the father submits that if the application for a set aside is not the correct route, the same arguments would support the ‘re-opening’ of the fact-finding hearing or through such permissible route that would observe the father’s and the child’s rights to a fair trial and a family life (Art. 6 and 8 ECHR respectively). Addressing the mother’s vulnerabilities, Mr Griffiths proposes that the mother may be cross examined by way of written questions and responses that are video recorded and are akin to the process that is sometimes used in criminal proceedings.

The mother strongly opposes the father’ applications. Mr Metzer KC and Ms Traugott submit that the father is using these proceedings as means to cause further distress and intimidation of the mother. They point to a number of examples that illustrate the father is ‘playing the system’ and seeking to gain a tactical advantage to achieve his ultimate goal. They further submit that he manifestly fails to satisfy any of the three limbs of the test that is set out in r.27.5(3). The evidence that he has filed in support of his application raises significant questions about his motivation and credibility which the court will be invited take into account not only in the context of the present application but also in any substantive judgment. On the secondary position, they also press the court to dismiss the father’s application on the same principles. Whilst it is not a position that is advanced or conceded on behalf of the mother, they submit that should the court decide to hear any further evidence in this matter, this must not include recalling the mother. The father has purposefully and manipulatively missed his opportunity to cross examine her. The court’s case management decision refusing his application to adjourn the matter has not been appealed and when balanced against concerns for the mother’s wellbeing as a victim of a horrendous assault and primary carer for A, the court must not allow any further questioning of the mother. They further submit that recalling the officer in the case is likely to cause intolerable delay to a fact-finding hearing that was listed by an order made ten months ago.

Miss Thornton endorses the submissions that are made on behalf the mother but reaches a different conclusion. Recognising the parties’ respective protected rights to a family life and a fair trial, she invites the court to hear from the father and his mother in evidence but not to permit any further questioning of the mother or the officer in the case. She submits that whilst ordinarily the father should be able to exercise his right to cross examine his accuser, in the context of the present case this must be balanced against the mother’s vulnerabilities and the impact this may have on her as A’s primary carer. Given the available evidence before the court, the court can hear submissions on the weight that is to be attached to each piece of evidence and consider the same in the context of the overall evidential landscape. Thus she invites the court to permit the father and his mother to give their oral evidence and then to give a judgment after hearing submissions on behalf of the parties.

During the hearing in March 2025, I heard the evidence of the mother and the officer in the case, before receiving written submissions from counsel on behalf of the mother and A. However, by then the mother’s investigations into the father’s alleged injury and the medical evidence in support of his application to adjourn the matter were well on

With expected sagacity, Mr Metzer KC and Ms Traugott submit that the decisions of this court made on 10 March 2025 fall into two distinct categories. The first was to refuse the father’s application for an adjournment which is a case management decision by the court under its wide ranging powers and may only be challenged by an appeal within seven days of the decision being made. The second decision was to proceed in the father’s absence under r. 27.4. In my view this is a correct and important distinction. Although closely connected, the character of the two decisions is fundamentally different where the second (or the outcome thereof) may be challenged by an application to set aside (see K v D ibid) and the former by appeal thereby excluding my decision refusing the father’s application to adjourn from the remit of this hearing.

The decision to proceed in the father’s absence, as set out in my earlier judgment, is governed by r. 27.4. This rule operates closely with r.27.5, where the first (r.27.4) delineates and guides the court’s powers to proceed in the absence of a party, whilst the second (r.27.5) provides a remedy for the party in whose absence the court has proceeded.

The important provisions that bridge the first and the second, is the requirement that the court has given a judgment or made an order against the absent party. The provisions of r. 27.5 reflect the terms of r. 39.3 of the Civil Procedure Rules (1998) (‘CPR’) with

However, I have been helpfully referred to some relevant authorities in the civil jurisdiction. The Court of Appeal in Bank of Scotland v Pereira & Ors [2011] EWCA

The submission in this respect is taken further by Miss Thornton who refers to authorities that address the requirements of the applicant to provide adequate medical evidence in support of his application. They include Emojevbe v Secretary of State forTransport [2017] EWCA Civ 934 and Bruce v Wychavon District Council [2023] EWCA Civ 1389.

Emojevbe concerned an appeal by Dr Emojevbe against the decision to refuse his application for an adjournment on medical grounds and the court granting summary judgment in favour of the Defendant in Dr Emojevbe’ s absence. Bruce concerned the use of an airfield that was owned by Mr Bruce and subject to restrictions on its use. He failed to comply with the enforcement notices of the Defendant District Council, leading to the latter applying for injunctions against Mr Bruce. Subsequently, the District Council applied to commit Mr Bruce for breaches of the said injunction. Mr Bruce did not attend the committal hearing and the court proceeded to commit him in his absence. At a subsequent sentencing hearing when Mr Bruce attended, the learned judge refused his application to reopen the matter and sentenced him to a twelve-month custodial sentence. Mr Bruce appealed and the Court of Appeal refused his appeal that challenged the learned judge’s decisions to proceed in his absence, not to reopen the case as well as his appeal against a sentence of twelve months.

Whilst the facts of all of these authorities are very different, the common thread that binds them is the giving of judgment and/or making of an order against an absent party that brings them square into the ambit of r. 39.3 of CPR and relevant to r. 27.4 and r.

FPR10. These resultant judgment or order after a hearing in the absence of a party

In my judgment, whilst the case has proceeded in the father’s absence under r. 27.4, the requirements of a judgment or an order against the father in his absence are not met. Consequently, the provisions of r. 27.5 are not engaged and there is no requirement for me to address the three limbs of the test that is set out in r.27.5(3).

I am grateful to counsel for their engagement with this issue and their respective helpful submissions in this regard. The parties’ submissions have centred on the ‘reopening’ of the fact finding hearing and to this end I have been referred to two relevant decisions of the Court of Appeal, Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465 and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316. The former, which is the most recent authority on this issue, concerned the decision of the lower court to reopen a fact-finding hearing that had concluded with no finding against the second father who successfully appealed the decision. Jackson LJ giving the leading judgment, provided a most helpful analysis of the applicable principles mentioning a number of other previous authorities include the latter aforementioned case.

Re CTD (referred to in Re J Ibid) concerned previous concluded fact-finding hearings in which on appeal Jackson LJ set out the applicable principles by reference to a number of previous authorities leading to his conclusion on the applicable test in the following terms:

“When an application is made to reopen findings of fact in a family case the court proceeds in three stages:

(1)

It asks whether the applicant has shown that there are solid grounds for believing that the previous findings require revisiting.

(2)

If that hurdle is overcome, it decides how the rehearing is to be conducted.

(3)

It rehears the matter and determines the issues.”

It is clear that the fundamental requirement for reopening a finding of fact hearing is the conclusion of the hearing with findings having been made. As recorded earlier this is clearly not the circumstances of the instant case where this court has yet to reach a conclusion on the substantive issues. Therefore the circumstances of the present case do not fall within these authorities and do not require the father to satisfy the three-stage test set out above.

In my judgment, in the present circumstances the only proper route through which the father’s application may be addressed is the court’s general case management powers.

The father’s protected rights to a fair trial and family life are carefully balanced against the same protected rights of the other parties. Each of the parties’ respective protected rights may only be interfered with if it is necessary, proportionate, in pursuance of a legitimate aim and in accordance with the law. Save for the issue of delay which is likely to be prejudicial to A’s welfare (s. 1(2) Children Act 1989), I do not find that there is any material conflict between the father’s rights and those of A. The mother’s objections to the father’s late participation in this fact finding are entirely understandable given significant events and the delay in these proceedings. However, they do not reach the threshold that would justify the exclusion of the father from these proceedings. By reason of the foregoing, these can be addressed without the need for excluding the father from the proceedings.

It is in the common interest of all of the parties that the matter is resolved as soon as possible and that the conclusions of the court are based on a fair and robust process that permits the court to properly consider the totality of the evidential landscape. This aim can only be achieved by the father having an opportunity to participate in the proceedings that in turn gives rise to the last issue of how the proceedings should continue.

Subject to the parties’ respective primary position, it is common ground that if the court is to proceed to hear further evidence, the father and his mother should have the opportunity to give oral evidence and to be the subject of cross examination. The father further seeks to cross examine the officer in the case and the mother by recalling them. It is highly regrettable that the father has not complied with the court’s directions to obtain transcripts of the oral evidence of the latter two witnesses which has placed him at a possible disadvantage at this hearing.

The officer in the case gave evidence of some detail of police intelligence about the father and his apparent conduct. Whilst she was firmly of the view that the father was the only person with motive and the means to orchestrate the attack upon the mother, she was very clear that she had no direct evidence that would support her contention. This is not the appropriate juncture at which I can properly make any observations about the validity or the weight that I can attach to the officer’s evidence. However, in my view the best that the father can achieve in cross examination is most likely to be a concession by the officer that her opinion is based on circumstantial evidence, with no criminal or civil findings that underpin her opinion or perhaps she is so invested in finding the perpetrator of the attack on the mother that she has taken an imbalanced approach to the investigation of the father. The evidence of the officer in the case is part of the overall evidential landscape and the real issue is what if any weight the court should attach to the different categories of the police evidence when considering the totality of the evidence that is before the court. In my judgment, this is a matter that can be readily addressed in the closing submissions, which when balanced against the prospect of significant delay caused by the recalling of the officer, leads me to a clear conclusion that it is unnecessary and disproportionate for her to be recalled to give oral evidence.

Turning to the mother, her allegations against the father fall into two distinct categories, namely allegation of domestic abuse including in the main coercive and controlling behaviour and his involvement in the horrific attack upon her. The mother’s oral evidence in respect of the latter category was rich in detail but the connection between the attack and the father was based on her ‘feelings’ and belief that the father had orchestrated the attack. In this regard, the mother’s evidence is similar in character to that of the officer in the case although her evidence is based on personal views and knowledge of the father whereas the police are approaching this from a professional perspective. Notwithstanding the differences in the genesis of the personal and professional views, in my judgment these can be adequately and fairly addressed in submissions and when balanced against the potential impact on the mother, it is unnecessary and entirely disproportionate that the mother should now be recalled to give evidence on this issue.

The allegations of domestic abuse are based on the mother’s own asserted personal knowledge and experience which makes them very different to the allegations about the father’s involvement in the attack. As such, the balance between the mother’s rights and wellbeing against the father’s rights is much finer. The right to face and confront one’s accuser is a fundamental right that dates back to Roman law, long established in common law and applied in European jurisprudence (e.g. Al-Khawaja and Tahery vUnited Kingdom 2011 ECHR 2127). Whilst this right is most prominently commented upon in the criminal jurisdiction, its application in the civil and family is well established. The exceptions to the rule include direct cross examination of a vulnerable witness that are often addressed through special measures and the present context clearly engage PD 12J of FPR10. Indeed the Domestic Abuse Act (2021) prohibits the direct cross examination of the alleged victim by the alleged perpetrator and requires the court to put in place special measures that balances the rights of those parties and the impact upon the alleged victim. However, in some exceptional circumstances a trial may proceed without the cross examination of key witnesses (e.g. see Schatschaschwiliv Germany 2015 ECHR 1054).

The evidence that the father has filed to date cannot be the subject of any detailed analysis until the court has had the opportunity of hearing from him and it is considered in the context of the totality of the evidence that is before the court. To date, the evidence in support of his application in March of this year and subsequent applications have led to the respondents further questioning his conduct and his true intention behind his applications.

The parties are required to attend court for each hearing unless the court has permitted them not to do so (r. 27.3 FPR10). I note that after the hearing on 24 March 2025, the first hearing the father attended was 1 May 2025. The parties have had six months’ notice of the listed fact-finding hearing. During this period mother has had to live and to prepare for the prospect of giving evidence and being cross examined. This has been a daunting prospect and when giving her oral evidence, it was clear that it had taken its

The requirement of fairness is not exclusive to one party and it includes an overarching requirement of fairness in the process and the procedure that the court adopts to reach its conclusions on the disputed issues. Balancing the rights of each of these parties, I am satisfied that fairness can be achieved by the father and his mother giving evidence without the need to recall the mother to be cross examined by the father. The parties can address in their submissions what if any weight I should attach to the different pieces of evidence. The potential harm to the mother and the impact on A is in my judgment too great and cross examining her is unlikely to illicit much beyond the evidence that she has already adduced before the court. It is unnecessary and disproportionate to recall her to give evidence.

For reasons that I have set out above, I