‘No case to answer’ inappropriate

In re R (Family Dispute: Evidence) CA TLR 29 August

In a fact-finding hearing on the mother’s allegations of domestic violence on a father’s application for a residence order, after the mother had given evidence, the judge accepted a submission that she had not discharged the burden of proof and dismissed the case on a ‘no case to answer’ basis without hearing the father’s evidence. He should not have done so. The principles, which govern a submission of no case to answer in criminal proceedings and in civil law are clear. In family law, such a submission has no place. It was desirable to give clear guidance to judges conducting preliminary fact-finding hearings that it was not appropriate to accept a submission of no case to answer. The judge had risked derailing the whole future of the case based simply on his conclusion that the mother had lied. The obligation to hear out the whole case derived from the court’s duty to the child. The court ordered a retrial of the father’s application for a residence order.