By Rachel Norgate

There has been some uncertainty over the correct approach to adopt when determining whether a finding of fact can or should be re-opened.

This issue has been addressed in the recent case of Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465.

Background

This appeal arises from care proceedings about four children, A, B, C and D. The older two are the children of M and F1, while the younger two are the children of M and F2. D, the youngest child, has a degree of disability and developmental delay.

In 2019, F2 was accused of a sexual assault by his stepdaughter A. He was tried at the Crown Court in 2020 and acquitted after both had given evidence. In 2021, in Family Court proceedings between F2 and A’s mother (M), the court made no finding against F2 after a hearing in which A did not give evidence and played no part.

In 2022, an allegation of sexual assault was made against F2 by his daughter D. The local authority took care proceedings. Its case is that the threshold is met on three possible bases: assault on D in 2022, assault on A in 2019, or emotional abuse by M, including by fostering false allegations by D and/or by A.

Meanwhile the children are living with M and contact between F2 and C and D is not taking place. The picture is of a complex and deeply unhappy family situation in which the threshold of significant harm has surely been crossed: the questions for the court are how, and with what consequences. The forensic effect of the earlier family proceedings is that the alleged assault on A is taken as not having occurred.

The court granted the local authority’s application for the fact-finding outcome in respect of A’s allegation to be reopened and a full threshold hearing has been fixed at which she will give oral evidence. F2 appeals. His appeal is opposed by the other parties: the local authority, M, F1, A and the Children’s Guardian.

F2 appealed on five grounds, with the fifth ground asserting that the Judge was wrong to re-open A’s allegations where no “new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before”. This followed Mostyn J in RL v Nottinghamshire CC [2022] EWFC 13.

The main thrust of F2’s argument was that the new information required to justify a reopening had to relate specifically to A’s allegation. C’s allegation was not new information in relation to A’s allegation; its impact on A, in that she was now willing to give evidence, was not sufficient.

Legal framework

Peter Jackson LJ gave the lead judgment, confirming the law in relation to reopening of fact in children’s cases is settled and found in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316.

In summary, the test to be applied upon an application to reopen a previous finding of fact has three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.

In relation to the first stage: (i) the court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other; (ii) it should weigh up all relevant matters, including the need to put scarce resources to good use, the effect of delay on the child, the importance of establishing the truth, the nature and significance of the findings themselves and the quality and relevance of the further evidence; and (iii) above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.

Ultimately, the appeal was dismissed.

The court recognised that this reopening application raised difficult issues. It was made by an entity that was not a party to the earlier family proceedings and it was not prompted by a concern about the integrity of the previous finding in isolation.

Rather, the judge had to grapple with the ramifications of granting or refusing the application for a just disposal of care proceedings concerning four children who are caught up in a damaging family breakdown.

The object of the proceedings is to protect the children from further harm and to achieve a soundly based welfare outcome. The extent of the investigation that is necessary to achieve that was a matter for the court’s judgement, applying correct legal principles and taking account of all the circumstances.

In reaching the decision to dismiss the appeal, the Court of Appeal analysed the case of Re RL.

Re RL involved an application by a mother to reopen a finding, made five years previously, that injuries to a baby had been inflicted by her or by the child’s stepfather. It was not a strong application and, after a careful analysis of the facts, Mostyn J dismissed it. However, his judgment contains a lengthy exegesis of the doctrine of res judicata in family proceedings, leading to a different version of the applicable test for reopening findings.

Conclusion

The Court of Appeal were clear in their conclusion that the approach of Re RL is wrong and should not be followed.

Two main reasons were given for this decision:

1. A judge’s main responsibility is to decide the case in hand. The High Court and the appeal courts may also give rulings on matters of law to ensure that the law is correct, accessible to litigants and the public, and expressed in a way that is helpful to trial judges. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW [2015] EWCA Civ 1054, [2015] WLR(D) 425. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.
2. More fundamentally, it is a misconception that the time-tested approach to reopening findings of fact in children’s cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. There is rightly considerable consistency in the response of all courts to attempts to relitigate (see for example Re W at [28], cited at paragraph 9 above) but formulations cannot be cloned from one context to another without regard to their effect. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. In order to achieve just, welfare-based outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context. The formulation in Re RL originates in the decision in Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801, which arose from efforts to relitigate a claim in bankruptcy, but Re RL and the present case required the court to evaluate the very different considerations that arise in cases of child welfare. The applicable law is clear and there is no need to unsettle it for the sake of theoretical conformity by transposing a test devised in a different legal context.

Whilst some lawyers might not agree with the above conclusions, it will provide some clarity and certainty as the correct approach to be adopted in the future.

Friendly reminder that this article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.

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Mrs Justice Lieven DBE has sought to clarify and remind practitioners of the applicable law for Non-Molestation Order applications under the Family Law Act 1996, in the recent case of DS v AC [2023] EWFC 46.

Applications of this nature are frequently made (including on an ex-parte basis), and substantially increased during the pandemic.

 

Background

The Applicant, who was acting in person, applied for an ex-parte NMO on the 8^th of November 2022.

The parties started a relationship in October 2021 and the relationship ended by WhatsApp on the 16^th of September 2022. They met through a professional networking group and the applicant also worked part time in the respondent’s business at the end of their relationship.

The applicant’s statement specifically says that the respondent was not verbally (or physically) abusive or violent towards her. She felt he was controlling, including by buying her extravagant gifts and accusing her of not being grateful. She said he was increasingly demanding in terms of her answering his calls and being available. As the relationship went downhill the respondent texted her up to 30 times a day, and they had an argument about whether he flirted with a waitress. By September they were seeing each other less, although the applicant thought the respondent was manipulating her into drinking too much.

On 16 September the applicant ended the relationship by text, saying she would take formal steps should the respondent contact her again; she then blocked him. The respondent tried to call her a few times and on 18 September he sent an email, which Lieven J found to be rather sad; she did not agree with the applicant that it was threatening.

There was a financial dispute between the parties; the respondent took the applicant to the “small claims court” about money allegedly owed to him and the applicant counter-claimed in respect of wages due. On 3 November the respondent emailed the applicant to say that he had paid the wages. Although the email said that he was hurt and angry, the judge considered it “entirely appropriate”.

The applicant stated that she was applying ex parte because the respondent’s behaviour was unpredictable and that if he was on notice he might try to dissuade her from pursuing her application. A District Judge refused to make an ex parte order and listed a hearing on notice. The respondent attended the hearing but the applicant did not, so her application was dismissed.

The applicant emailed the court to explain her non-attendance and asked for her application to be reinstated. A directions hearing was listed before Lieven J to decide whether the application should be allowed to proceed.

 

Relevant legal framework

The Judge sets out the statutory test (S42 of the Family Law Act 1996) and the relatively sparse number of reported cases on the matter.

At paragraph 23, the following applicable key principles are confirmed:

On a without notice application the court must consider whether there is a risk of significant harm attributable to the Respondent if the order is not granted immediately, s.45(2)(a);

1. And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b);
2. A without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party, R v R at [1];
3. The Court should use its powers under the FLA with caution, particularly at a one -sided hearing, or necessarily on a paper consideration without the other party having notice, R v R at [1];
4. “molestation” does not imply necessarily either violence or threats of violence, but can cover any degree of harassment that calls for the intervention of the court, Horner v Horner at 51G;
5. The primary focus of the court should be upon the “harassment” or “alarm and distress” caused to those on the receiving end, Re T (A Child);
6. There does not have to be a positive intent to molest, Re T at [42].

 

Conclusion

As Mrs Justice Lieven stressed at paragraph 24 of the judgment:

“It is important that these principles are applied properly, and orders are not simply granted by default. In particular, it is important for all concerned to note that a without notice application should only be made in exceptional circumstances where there is a risk of significant harm. If a without notice application is made, then the statement in support must expressly deal with why the case is exceptional and what the significant risk alleged is. There can be no doubt that far too many such applications are made where there is no reasonable basis to grant the application without notice.”

Whilst it is imperative for applications of this nature to be granted where there is sufficient evidence of molestation and a significant risk of immediate harm, all applications and accompanying evidence requires scrutiny at an early stage.

In this case, there was no proper basis for an order to be made because there was no evidence that the conduct was sufficient to justify the intervention of the court. Orders are not to be granted where the evidence suggests that there is some upset at the end of a relationship.

Although there does not have to be a positive intent to molest, subjective distress alone is not enough to justify an order. In this case, the respondent had sent excessive texts and emails at the end of the relationship but he had stopped before the application was made.

The Judge therefore refused to reinstate the applicant’s application.

Friendly reminder that this article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.

 

Rachel Norgate

4^th of May 2023

Freeze!

A recap and summary of  J v H [2022] EWFC 133, which was a case involving the Husband’s (‘H’s) application for a freezing order.

The relevant background to this application is as follows:

1. The parties were engaged in financial proceedings following the end of their marriage,
2. On the 12^th of October 2022, H gave 1 hours’ notice that he intended to make an urgent application to restrain the Wife (‘W’) from dealing with her overseas assets,
3. Prior to this, H through his solicitors, wrote to W asking them to sign undertakings agreement not to dispose of any assets currently held in their name,
4. The application for a freezing order was adjourned until the 19^th of October 2022 and then again to the 25^th of October 2022 for determination by Mr Justice Peel.

Relevant legal framework

In short, a freezing order is an order which prevents a party disposing of or dealing with their assets.

UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 sets out the relevant principles and safeguards for an application of this nature:

i) The court has a general power to preserve specific tangible assets in specie where they are the subject matter of the claim. Such an order does not necessarily require application of all the freezing order principles and safeguards, although it is open to the court to impose them.

ii) For a freezing order in a sum of money which is capable of embracing all of the respondent’s assets up to the specified figure it is essential that all the principles and safeguards are scrupulously applied.

iii) Whether the application is made under the 1981 Act or the 1973 Act the applicant must show, by reference to clear evidence, an unjustified dealing with assets (which would include threats) by the respondent giving rise to the conclusion that there is a solid risk of dissipation of assets to the applicant’s prejudice. Such an unjustified dealing will normally give rise to the inference that it is done with the intention to defeat the applicant’s claim (and such an intention is presumed in the case of an application under the 1973 Act).

iv) The evidence in support of the application must depose to clear facts. The sources of information and belief must be clearly set out.

v) Where the application for a freezing order is made ex parte the applicant has to show that the matter is one of exceptional urgency. Short informal notice must be given to the respondent unless it is essential that he is not made aware of the application. No notice at all would only be justified where there is powerful evidence that the giving of any notice would likely lead the respondent to take steps to
defeat the purpose of the injunction, or where there is literally no time to give any notice before the order is required to prevent the threatened wrongful act. Cases where no notice at all can be justified are very rare indeed. The order of the court should record on its face the reason why it was satisfied that no or short notice was given.

vi) Where no notice, or short informal notice, is given the applicant is fixed with a high duty of candour. Breach of that duty will likely lead to a discharge of the order. The applicable principles on the re-grant of the order after discharge are set out in Arena Corporation v Schroeder at para 213.

vii) Where no notice, or short informal notice, is given the safeguards assume critical importance. The safeguards are set out in the standard examples for freezing and search orders. If an applicant seeks to dis-apply any safeguard the court must be made unambiguously aware of this and the departure must be clearly justified. The giving of an undertaking in damages, whether to the respondent or to an affected third party, is an almost invariable requirement; release of this must be clearly justified.

Analysis and conclusion

This application came about after W removed the sum of $18,000.00 from a joint account. W went on to explain the purpose of the withdrawal and that the funds would be returned forthwith.

Within correspondence before the application was made, W confirmed that she did not intend to take any action to deal with or dispose of her assets other than for personal and business purposes. H continued to make the application, initially only giving an hour of notice.

Mr Justice Peel concluded:

[19] Put simply, I am of the view that the evidential justification for H’s application is thin. There is little in terms of objective evidence to indicate a solid risk of dissipation of assets. Mere suspicion, or anxiety, on H’s part is not sufficient. I am not satisfied that there is any basis upon which to assert that W by her actions was and is seeking to defeat H’s financial claims.

[20] At para 52 of UL v BK, Mostyn J said this:

“Finally, I draw attention to the great concern of myself and other judges at the continued widespread abuse of the principles governing ex parte applications not only for freezing orders but also more generally. It is worth remembering not only that the ex parte procedure is intrinsically unfair but also, and very importantly, that a case which begins with an ex parte order is usually poisoned from that point onwards. The unilateral step taken at the beginning of case echoes down its history. Often the respondent is enraged by the step taken against him and looks to take counter-offensive measures. Every single subsequent step is coloured by that fateful first step. Costs tend to mount exponentially. And even after the lawyers close their files and render their final bills the personal relations of the spouses will likely remain forever soured”.

[21] Those words continue to ring true. True, the application was not made without notice, but with only 1 hours’ notice to W it was to all intents and purposes a unilateral step. There is no novel point of law in this case, nor are the facts themselves particularly notable, although the wealth is far beyond that of most people. But this case is a salutary reminder to practitioners, if reminder is needed, that the legal and procedural pre-requisites of a freezing order application, or s37 application, as set out in UL v BK must be complied with before the court will be willing to entertain granting such an order.

[22] I also take the view that the application was defective in two particular respects, although ultimately this has not influenced my decision on the substantive merits:

• • • The application was supported by a witness statement, yet PD20A para 3.1 of the Family Procedure Rules 2020 mandates that “Applications for search orders and freezing injunctions must be supported by affidavit evidence (emphasis added)”, in contra distinction to other forms of interim injunctions which must be supported by either a witness statement or the application notice provided it is verified by a statement of truth; and
    • The draft order put before Morgan J made no provision for W’s costs of living, the school fees for the parties’ child (which W had always paid) and W’s legal fees, all of which should have been included as standard exceptions to the full rigours of the proposed freezing order.

[23] The application is dismissed. Morgan J was, in my view, entirely correct to refuse to make the order at the first hearing, and the unsustainability of the application became even clearer when W subsequently produced her evidence. W has offered a form of wording to be incorporated by way of recital which (with some amendments by me) I reproduce as:

• • 1. “W states that she has no intention to withdraw funds from her investment portfolio.”
    2. “W states that she no intention to sell, mortgage, charge, or otherwise deal with the property.”
    3. “W agrees to give H 7 days’ notice in writing of any intention to (a) withdraw funds from her investment portfolio AND/OR (b) sell, mortgage, charge, or otherwise deal with the property.”
    4. “W considers that as a matter of law she is beneficially entitled to 100% of the property, and in any event expects and intends that the transfer of legal title into her sole name shall be registered as soon as practicable”.

I consider that her agreement to include these clauses in the preamble to my order is constructive and pragmatic

Mr Justice Peel made a costs order against H, which is not to be enforced until the conclusion of the financial remedy proceedings. This was with the view that the debt would likely be deducted from any final award.

Friendly reminder that this article is not to be viewed as legal advice, and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.

 

Rachel Norgate

21^st March 2023

The recent appeal of Mother v Father [2022] EWHC 3107 (Fam) explores and confirms judicial case management powers, with an emphasis on when and how the Court will hear evidence.

The mother in this case appealed the decision of a Lay Bench to limit the oral evidence and prohibit either parent being cross-examined.

The pertinent background facts are as follows:

1. The parties are the Mother (“M”) and Father (“F”) of X, an 8 year old girl. The parents separated in 2019 and X remained living in the family home. The F works close to the family home, whereas the M’s work is some 50 miles further north,
2. M applied for X to live with her and for her school to be changed from close to the family home to the town where the M was living,
3. F made a cross application for the child to remain living with him and to remain at her existing school,
4. Cafcass produced a section 7 report and recommended that the Court make a Child Arrangements Order (“CAO”) that the child live with the F and have contact with M,
5. M argued that the section 7 report was inaccurate and that there should be a fact finding hearing, which the Court refused,
6. The matter was then listed for a contested final hearing, with the Section 7 author in attendance.

At the final hearing, the Lay Bench determined that the matter should proceed without either party being entitled to cross-examine the other. M subsequently appealed on three grounds:

1. First that she did not agree with matters in the father’s statement which went to the case and the welfare of the child and in being prevented from properly challenging these matters the case could not be fairly or properly heard.
2. Secondly that the bench indicated that the decision not to allow the cross-examination of the parents was on the basis that there were no safeguarding issues.
3. Thirdly that the bench had prejudged the case and accepted the CAFCASS Officer’s report before the CAFCASS Officer had been cross-examined.

The matter was adjourned to permit the appeal to proceed.

 

Relevant legal framework

 Family Procedure Rule (“FPR”) 22 is engaged when determining the Court’s case management powers.

FPR 22.1 details the power of the Court to control evidence and FPR 22.6 confirms the use of witness statements at the final hearing.

The Court must always have the overriding objective as set out at FPR 1.1 in mind.

Specifically, when dealing with an appeal of a case management decision, the Court must bear in mind Re TG (a child) [2013] EWCA Civ 5, specifically:

[35] (4) Fourth, the Court of Appeal has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case-management decisions: Deripaska v Cherney [2012] EWCA Civ 1235 , paras [17], [30], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706, paras [25], [45], [46]. Of course, the Court of Appeal must and will intervene when it is proper to do so.

 However, it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge: Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964 , paras [37]-[38], [47], Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 , para [33], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706 , para [46]. This is not a question of judicial comity; there are sound pragmatic reasons for this approach. First, as Arden LJ pointed out in Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964 , para [47]:

 “Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process.”

 Second, as she went on to observe:

 “The judge dealing with case management is often better equipped to deal with case management issues.”

 The judge well acquainted with the proceedings because he or she has dealt with previous interlocutory applications will have a knowledge of and ‘feel’ for the case superior to that of the Court of Appeal.

 [36] Exactly the same applies in family cases. Thus in Re C Thorpe LJ and I dismissed the appeal notwithstanding what I said was the “robust view” His Honour Judge Cliffe had formed when deciding to stop the hearing. And in Re B I refused permission to appeal from an order of Her Honour Judge Miranda Robertshaw involving what I described (para [16]) as “appropriately vigorous and robust case management.” I said (para [17]):

 “The circumstances in which this court can or should interfere at the interlocutory stage with case management decisions are limited. Part of the process of family litigation in the modern era is vigorous case management by allocated judges who have responsibility for the case which they are managing. This court can intervene only if there has been serious error, if the case management judge has gone plainly wrong; otherwise the entire purpose of case management, which is to move cases forward as quickly as possible, will be frustrated, because cases are liable to be derailed by interlocutory appeals.”

 As Black LJ very recently observed in Re B (A Child) [2012] EWCA Civ 1742, para [35]:

“A judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.”

 

 Analysis and conclusion

 Parents involved in proceedings involving their children often wish to have their say or ask the other parent questions. They feel it is their right to give evidence, but the dismissal of the appeal confirms that this is not necessarily true when looking at the Court’s case management powers.

Mrs Justice Lieven DBE dismissed the mother’s appeal confirming that the Court’s decision fell within the scope of their case management powers and discretion.

To summarise the Judge’s reasons for the above decision:

1. The starting point is that there is no right in any party to cross-examine,
2. The Court had two statements from the M and one from the F. They therefore knew what the parties’ evidence and positions were. Further, Counsel for the parents could cross-examine the Cafcass officer and, as such, put any material areas of disagreement to her,
3. It is open to the Bench to consider that this would be a more effective and proportionate way to consider the material, rather than hearing oral evidence from the parents. It should be remembered that the Bench had the parties’ written evidence,
4. I appreciate that it is hard for parents to accept, but it is likely that a court facing this type of issue will put the most weight on the Cafcass officer’s evidence. They are an independent person with great expertise in this field, and great skill in talking to children,
5. It was entirely open to the Court to take the view that they needed to hear the Cafcass officer on this matter, but that the oral evidence of the parents would not be of material assistance,
6. The procedure to be adopted in court is a matter for the judge or tribunal, subject to the basic principles of natural justice and, to the degree it does not overlap, Article 6,
7. Finally, I note the Bench adjourned the case to allow the Mother to appeal. I fully understand why they took this course, but Courts in this situation should carefully consider whether it would be more effective and proportionate to continue with the hearing and then for any appeal to be based on the substantive outcome. It is possible that the grounds for appeal would thereby fall away, and it would have the obvious benefit of not building more delay into the determination of the case.

The clarity this judgment has provided on case management issues, particularly the necessity of oral evidence,  is likely to be welcomed by Family practitioners, who often have to deal with these types of hearings which have already been severely delayed and are listed alongside other matters.

It will also assist those appearing in a family court to better understand the Court’s role and that the Court is not required to address every single issue and will focus their decision making on the key points relating to welfare.

 

1. Friendly reminder that this article is not to be viewed as legal advice, and is simply for educational purposes and to help keep practitioners up to date on the key legal framework

 

Rachel Norgate

 30^th January 2023

Happy new year to one and all!

Much like everyone else, Lamb Building Family Team has some of their own New Year goals. One is to provide more frequent updates on the website of the latest news and developments in Family Law.

What better way to start than to jump into the private children sector to answer this age-old question:

To fact-find or not to fact-find, that is the question

Family courts are well-versed in dealing with allegations and cross-allegations of domestic abuse. One of the more difficult decisions for the Court to take at an early stage is how best to deal with these allegations. This involves the Court deciding whether the truth of the allegations is to be formally determined or whether the Court can simply commence the welfare stage analysis.

The starting point must always be Practice Direction 12J.

Paragraph 16 – The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse […]

 Paragraph 17– In determining whether it is necessary to conduct a fact- finding hearing, the court should consider – 

1. The views of the parties, and of CAFCASS;
2. Whether there are admissions by a party which provide sufficient factual basis on which to proceed;
3. If a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;
4. Whether there is other evidence available to the court that provides a sufficient basis on which to proceed;
5. Whether the factors set out in paragraphs 36/37 can be determined without a fact-finding;
6. The nature of the evidence required to resolve disputed allegations;
7. Whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.

 Paragraph 36– In light of any findings of fact or admissions or where DA is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.

 Paragraph 37– In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider – 

1. The effect of domestic abuse on the child and on the living arrangements for where the child is living;
2. The effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;
3. Whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
4. The likely behaviour during contact of the parent against whom findings are made and its effect on the child;
5. The capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.

 

The case of Re H-N and Others (Children) (domestic abuse: findings of fact hearings) [2021] EWCA Civ 448 re-explored the issue of fact-finding hearings in family courts.

 To summarise some of the key points:

 [4] […] Where past domestic abuse is found to have taken place, the court must consider the impact that abuse has had on both the child and parent and thereafter determine what orders are to be made for the future protection and welfare of parent and child in the light of those findings.

 [8] Not every case requires a fact-finding hearing even where domestic abuse is alleged. […] it is of critical importance to identify at an early stage the real issue in the case in particular with regard to the welfare of the child before a court is able to assess if, a fact-finding hearing is necessary and if so, what form it should take.

 [28] We are therefore of the view that PD12J is and remains, fit for the purpose […]

 [42] For a long time now, the Family courts have not only required a party making allegations of domestic abuse to file witness statements setting out the evidence on which they rely, but also to reduce the allegations made into a ‘Scott Schedule’ to provide an agenda for the fact-finding hearing. PD12J paragraph 19(c) requires the court to consider at an early stage:

 ‘whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegations or complaint; the allegations in the schedule should be focussed on the factual issues to be tried; …’

 [51] […] ‘the overwhelming majority of domestic abuse (particularly abuse perpetrated by men against women) is underpinned by coercive control and it is the overarching issue that ought to be tried first by the court.’ We agree and it follows that consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined. The principal relevance of conducting a fact-finding hearing and in establishing whether there is, or has been, such a pattern of behaviour, is because of the impact that such a finding may have on the assessment of any risk involved in continuing contact.

 [61] When considering domestic abuse, it will not infrequently be the case that the alleged behaviour will be such that it is capable both of being the subject of prosecution as an offence before the criminal courts and being the focus of consideration in the family courts as justification for the implementation of protective measures […]

 [64] […] ‘importation of concepts from the criminal courts to the Family Court’ is ‘inappropriate, unnecessary and unwise, and should be avoided’.

 

The case of K v K [2022] EWCA Civ 468 confirmed the principles established in Re H-N.

To summarise some of the key points:

[42] A decision to hold a fact-finding hearing is a major judicial determination within the course of family proceedings. The process will inevitably introduce delay and postpone anything other than an interim determination of issues relating to the child’s welfare […] Further, the litigation of factual issues between parents is likely to be adversarial and, whatever the outcome, to have a negative impact on their ongoing relationship and ability to cooperate with each other as parents. It is therefore important for the court, in every case where fact-finding is being considered, to take time to identify the welfare issues, to understand the nature of the allegations, and then to consider whether the facts alleged are relevant to those issues and whether it is, therefore, necessary for the factual dispute to be determined.

[45] […] fact-finding is only needed if the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare.

 [89] Whilst the court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the court to hear about, much less to resolve, issues between the parents relating to their time together, unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child.

 Sir Geoffrey Vos also confirmed the importance of taking advantage of the MIAM at an early stage in proceedings, for a speedier resolution of the issues with the least trauma imposed on the family.

 

On 5^th May 2022, the President of the Family Division, Sir Andrew Macfarlane, produced guidance for Judges and Magistrates on how to navigate domestic abuse in Private Law Children Proceedings.

To summarise some of the key points:

 [13] The fundamentals are relevance, purpose, and proportionality.

[14] Allegations that require the assessment of a pattern of behaviour, such as controlling and coercive behaviour, do not justify a different approach. The court only needs to determine allegations of such behaviour to the extent that it is relevant and necessary to determine issues as to a child’s future welfare. Even then, the court is only required to assess the overarching issue, rather than every single subsidiary factual allegation that may also be raised.

[15] Always consider whether the allegations (at their highest) go to safeguarding in general or to particular circumstances that could be mitigated by supervision of contact or some other measures. If the latter and mitigations are available, why is it said that a fact-finding hearing is required?

 [16] If your conclusion is that the allegations, if proved and however serious, would not be relevant to the decision, then no fact-finding hearing is required.

 [27] The court must, at all stages in the proceedings, consider whether domestic abuse is raised as an issue: FPR PD 12J [5]. However, guard against attempts to re-argue the question once a decision has been made.

 

To conclude, the key questions that a Court must answer before concluding that a separate fact-finding hearing is both necessary and proportionate are:

1. What is the real issue in the case, in particular, concerning the welfare of the child?

2. Is there any other evidence before the Court to safely dispose of the allegations?

3. Would the outcome of a separate fact-finding hearing impact the assessment of the future risk to the child?

 

Our next article will explore how Family Courts handle allegations which involve a criminal element and will be posted on the 16^th January 2023.

1. Friendly reminder that this article is not to be viewed as legal advice, and is simply for educational purposes and to help keep practitioners up to date on the key legal framework

 

Rachel Norgate

3^rd January 2023