Fact-finding: consequencesFact-finding:consequencesFact-findingFact-finding:consequencesFact-findingFact-finding:consequencesFact-finding
14.27Although, as noted above, fact-finding can (and often will) take place at essentially the same time as the determination of the substantive best interests questions relating to P, where the fact-finding takes place separately it would be usual for the court to give a separate judgment in relation to the fact-finding hearing in order for the parties to take stock prior to the second stage. Part of this taking stock might well be to consider – in an appropriate case – the instruction of the relevant expert to report upon P’s best interests. Experience has taught that it is frequently helpful to delay the instruction until this stage so that the expert can proceed upon the basis of clearly established facts, rather than having to give alternative conclusions upon the basis of what may be found in due course to have occurred (it being clear that an expert cannot seek to determine contested facts for themselves: see para 12.61).
14.28Importantly, as there is no difference in principle between the approach to be adopted to split hearings in the Court of Protection (at least in welfare cases) and public law child protection proceedings, the decision of the House of Lords in
Re B1In re B (children) (care proceedings: standard of proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11 at para 2 per Lord Hoffmann. applies so as to require that once findings of fact have been made the case is part heard and the trial should not resume before a different judge.
2Enfield LBC v SA and others [2010] EWHC 196 (Admin), [2010] COPLR Con Vol 362 at para 113 per McFarlane J (as he then was).14.29Finally, it should be noted that it is clear that a judge may subsequently revisit the conclusions reached at a fact-finding hearing if subsequent evidence warrants it.
3In re L and another (children) (preliminary finding: power to reverse) [2013] 1 WLR 634 at para 34; see also In re S-B (children) (care proceedings: standard of proof) [2010] 1 AC 678 at para 46.