Summary Determination – right or wrong?
Date posted: 11 October 2018
A v R (Appeal of Summary Determination)  EWHC 521 (Fam)
This case involved proceedings concerning the father’s contact with his daughter who was 13 at the time and the proceedings had been ongoing for almost a decade. The father sought increased contact and in 2017 the court determined that a psychological report on the child was necessary. This report was only received the evening prior to the hearing and which the Judge subsequently viewed to be deficient.
During the hearing the representatives for the parties failed to appropriately allow the other party the ability to make clear and succinct representations or submissions due to continuously interrupting each other.
In light of the lengthy proceedings which had taken place the Judge took the decision to conclude the proceedings. The Judge dismissed the father’s application to instruct a further psychologist, granted a Child Arrangement Order (living with) to the mother and the father’s contact to remain the same as previously ordered. The father appealed this on the basis that the Judge was wrong to make a final order as he had not given proper consideration to arguments made and that the matter should have been concluded without a full trial (final hearing) taking place.
The appeal was allowed and the matter was listed for a further hearing. The reasons provided were:
Whilst the Judge had heard submissions on whether the Judge should make a final order at the hearing, the Judge had not heard any submissions on the merits of making such orders from any party and which was a serious procedural irregularity.
The Judge was wrong not to allow a short adjournment permit the father the opportunity to make an application for a replacement psychologist. The Judge had decided that the psychologist report prepared was insufficient and it had already been determined by the court previously that the expert report was necessary to assist the court in making a determination in the proceedings.
The court was not assisted by the advocates who failed to allow the other the opportunity to make sequenced representations and submissions and as provided for by Family Procedural Rules rule 12.21.
Although the initial Judge had attempted to be helpful to the parties by seeking to conclude the lengthy proceedings that had taken place, the Judge was clearly wrong to do so summarily and without hearing appropriate submissions from the parties on the key issues of the case.
This does not mean that the court is unable to make final orders on a summarily basis and without a final hearing, however, prior to doing so the Judge must ensure he has considered the arguments on the merits of making final orders before such orders are made.