Over the years and throughout the legal profession many judges and legal professionals have grappled with varying issues within the legal system, from societal advances affecting the way we look at the law to definitions of specific words affecting the way we police our society. Arguments, controversy and debate dog every legal system and rightly so, without such, advances would not be made and we would be stuck with draconian ideas of how society should behave.
Recently Ryder LJ gave some interesting guidance regarding split hearings and ‘non-accidental injury’ in public child law proceedings. He did so in the case of Re S (A Child)  EWCA Civ 25. For those of you who are unsure as to what a split hearing actually is, it is a hearing that is divided in to two parts; I suppose that is kind of obvious. The first part is where the court makes findings of fact on the various issues identified within the case. The second part is where the court, based on its findings of fact, decides the case.
So why split a hearing? According to an article written by Rhiannon Davies and Charmain Gammon, both of whom are Barristers, in 2011, fact finding hearings can ‘narrow and determine issues within both public and private law proceedings so as to avoid delay, inform expert assessment and assist effective case management’ but can also have a negative effect in that they can ‘build in significant delay, unnecessarily “raise the temperature” of private law proceedings and incur disproportionate expense’. According to the President’s Guidance in Relation to Split Hearings, published in May 2010, ‘Judges and magistrates should always remember that the decision to direct a split hearing or to conduct a fact finding hearing is a judicial decision… Thus the court should not direct a fact finding hearing simply because the parties agree that one is necessary or because Cafcass says that it cannot report without one. Such considerations are, of course, to be taken into account, but they are not conclusive. In any event, the focus of any report is a matter for the court.’ Further the guidance states that ‘a fact finding hearing should only be ordered if the court takes the view that the case cannot properly be decided without such a hearing. Even when the court comes to the conclusion that a fact finding hearing is necessary, it by no means follows that such a hearing needs to be separate from the substantive hearing. In nearly every case, the court’s findings of fact inform its conclusions.’ In addition to the above the guidance draws the reader’s attention to the practice direction within this area which states that the courts must give directions, when a fact finding hearing is deemed necessary, to ensure ‘the matters in issue are determined expeditiously and fairly’.
As far back as 1996, judges were tackling the issue of when a split hearing should be used. Bracewell J stated that it would be of positive influence if the courts were to consider whether or not there were questions of fact in need of determination within a case at an early stage. This, according to Bracewell J, would allow ‘the substantive hearing to proceed more speedily’ and allow the court to ‘focus on the child’s welfare with greater clarity’. Bracewell J concluded that cases that would be suitable for split hearing were ‘cases in which there is a clear and stark issue, such as sexual abuse or physical abuse’ with the aim ‘to prevent delay and the ill-focused use of scarce expert resources’.
Since 1996 numerous cases have questioned when a split hearing should be used, bringing us to the latest case of Re S (A Child)  EWCA Civ 25. This case resulted from a young girl being admitted to hospital with a skull fracture. The local authority stated that the injury was non-accidental, deliberately inflicted and had occurred whilst the girl was in the care of her parents. This case then gave rise to two issues, the first being that discussed above: when should a split hearing be used and the second being the question of the meaning of non-accidental injury.
In dealing with the first matter, Ryder LJ stated that split hearing should be use only where there is ‘a stark or discrete issue to be determined and an early conclusion to that issue will enable the substantive determination… to be made more expeditiously’. Further he stated that 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. It is inappropriate to argue a split hearing is required to enable a social care assessment to be undertaken. In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider. A decision about a split hearing is a case management decision and accordingly Part 1 of the FPR 2010 and Pilot PD 12A apply. A split hearing is only justifiable where the delay is in furtherance of the overriding objective. Any such decision should be considered at the case management hearing and reasons should be recorded on the face of the order along with the issue to be tried.’
In dealing with the second matter, the definition of non-accidental injury, Ryder LJ stated ‘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).’ Further, Ryder J stated that ‘just as non-accidental injury is a tautology, ‘accidental injury’ is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.’
So where does that leave us? The two areas still appear somewhat unresolved, even if we have a clearer idea of what is expected. Both areas still need further discussion and debate and it may be, like so many areas of law, that this debate will be ongoing for years to come. In a legal system reliant on words it is impossible to be so specific and clear as to completely avoid doubt or confusion. Every word we use has a thousand synonyms all of which have their own synonyms and thus we may be locked in an ongoing battle to have a system so clearly defined that there is no doubt as to exactly what is meant and trying to achieve this with words that are never going to result in the absence of doubt.
Re S (A Child)  EWCA Civ 25:
When is a Fact Finding Hearing Necessary?, Rhiannon Davies and Charmian Gammon: http://www.familylawweek.co.uk/site.aspx?i=ed80309
The President’s Guidance in Relation to Split Hearings: http://www.familylaw.co.uk/system/uploads/attachments/0000/6106/Practice_Guidance_Split_Hearings_May_2010.pdf