The judgment of Re H-N and Others (Children)(Domestic Abuse: Finding of Fact Hearings)  EWCA Civ 448 has finally been handed down by the President of the Family Division, Lady Justice King and Lord Justice Holroyde. What was long billed by those of us in the family legal profession as potentially a game changer in the way the family courts address issues of domestic abuse, has finally come to a head.
With the case involving four conjoined appeals for the Court to determine and submissions across the board from the nation’s top-tier Counsel, including our own Door Tenant, Teertha Gupta QC, many within the profession had expected this appeal to begin turning the page to a new chapter in domestic abuse in the Family Courts.
Did it live up to the hype? At this moment in time, it’s hard to say so. If you follow the thread through the paragraphs of this judgment, you will definitely find some guidance and principles laid out here and there, a very useful staged approach on the necessity of fact-finding and PD12J which all practitioners should keep in their arsenal. However, overall it seems that the Court of Appeal has taken a more cautious and conservative approach.
Maybe we set ourselves up for disappointment, but it was hard not to get a little excited though. Some of you may have been fortunate enough to attend the appeal remotely over the course of those three days. With well over 100 attendees (including our Pupils!) and hearing from heavyweight QCs one after the other representing Mothers, Fathers and Intervenors alike, it seemed every Counsel in that hearing had something to say on the topic of domestic abuse in the Family Courts.
In this article, we will, firstly, provide a concise overview of each appeal and, secondly, we will be providing the top five takeaway points from the judgment and what it could potentially mean for the family legal profession going forward.
Re B-B was an appeal by the Mother in this case against a child arrangements order made by HHJ Scarratt in August 2019. That order was a consent order which established that B-B lived with the Mother and would spend time with the Father. Contact progressed in accordance with the order from supervised to unsupervised. By March 2020, the Father was having unsupervised contact at his home for a period of 8 hours at a time.
Contact was suspended by the Mother in March 2020 in light of the COVID-19 pandemic which resulted in the Father making an application for enforcement in July 2020. By November 2020, the latest order by the Family Court provided that the Father’s contact takes place on a fortnightly basis in a contact centre.
The Mother was granted permission to appeal the consent order in August 2019 by HHJ Scarratt. The basis of the appeal was that the Judge was wrong to make an order by consent as there were unresolved allegations of serious domestic abuse, including rape. A particular focus of the Mother’s appeal was levelled against the Judge’s comments made in two case management hearings in March and August 2019. The Judge was frustrated with the poor case management of the matter and had made comments which included:
- If the case carried on, B-B would be taken into care and adopted;
- The parties should ‘sort it out’ and that they ‘should have had the riot act read to [them] months ago’ and were sent out to sort an agreement;
- That contact would eventually have to come out of the contact centre at some point and ‘this is why fact-findings are often a complete waste of time because the end result will be that there’ll be, at some stage, contact outside with father’
While the Mother did not make any application for a recusal of the Judge, it was the Mother’s case at appeal that the cumulative effect of the Judge’s approach meant that there was no true consent to the making of the order on the Mother’s part.
Re H was an appeal made by the Mother against an order made by HHJ Tolson QC in September 2019 who held a fact-finding hearing concerning the parents. The judgment of that hearing was that three allegations relating to two incidents of rape were not proven. In that same hearing, the Mother invited the Court to determine two allegations concerning financial abuse, emotional abuse and harassment which in totality amounted to controlling and coercive behaviour. The Judge held that these allegations have not been investigated and have no implications for future child arrangements.
Following this hearing, the Judge made an order for unsupervised contact between the Father and H. The Mother’s case is that she does not seek to curtail the successful contact taking place between H and her Father but rather she seeks a rehearing of the above allegations on the basis that the Judgement was flawed.
Re T was an appeal by the Mother regarding an order made by HHJ Evans-Gordon in December 2019. This was an order following a three day fact-finding hearing. The Mother’s grounds of appeal can be summarised as follows:
- The trial itself was not fair in that the Judge prejudged the case, failed to take into account the mother’s vulnerability, that English was not her first language, and that she had not had access to the father’s statements in a translated form;
- The Judge’s decision was wrong in that she failed to appreciate the significance of those findings that she made
- The Judge’s application of the law was inadequate and as a result she failed properly to find that the Mother was anally raped by the Father.
Re H-N was an appeal by the Mother against an order made by HHJ Tolson QC in August 2020. A fact-finding hearing had taken place in which the Judge held that the findings of domestic abuse sought by the Mother against the Father were not proven. The Judge had made case management directions which included a Children’s Guardian be appointed, a psychiatric assessment of the Mother to be completed and a s.37 Children Act 1989 investigation undertaken by the Local Authority. In addition, a recording was included in the order that the approach taken by professionals should be on the basis that the allegations made by the Mother did not happen. This recording was made despite the Father making limited admissions of domestic abuse in the fact-finding hearing.
So, what are the key takeaway points for practitioners?
The Court of Appeal is guarded, or maybe a better word is reserved, in the guidance it seeks to give. Some of those pining for reform may feel exasperated but their reasoning we would say is quite rational. At the present moment, the Family Justice system is currently awaiting the third report from the Private Law Working Group chaired by Mr Justice Cobb. Therefore, the Court has taken the view that it may be the wrong time to prescribe new law while the Working Group are contemplating their own recommendations.
Even though the ruling hasn’t lived up to some people’s expectations, it is clear reform is coming. Nevertheless, the judgment does provide insightful guidance and commentary and the team at Unit Chambers considers there are five valuable points to share with you;
- The definition of domestic abuse has rightly evolved over time. A reliable and secure definition is in PD12J. It’s unlikely that this definition is to be changed anytime soon and it includes coercive behaviour and controlling behaviour. It remains ‘fit for purpose.’
- To assist in understanding coercive and controlling behaviour all practitioners must read F v M  EWFC 4. This ruling by Hayden J was endorsed by the Court as a vital illustration of how the facts in that case constitute coercive and controlling behaviour in accordance with the definition set out in PD12J
- Case Management is of critical importance. The critical issues must be identified at an early stage. These issues must be considered in the context of CAO. It is not a free standing arena to allow irrelevant adult conflict to be played out. Courts must grapple with PD12J and the test of ‘necessity’ via the lens of the overriding objective at the earliest opportunity. To assist practitioners in deciding if a fact-finding is ‘necessary’, we would recommend reading the four staged approach in Paragraph 37 of the judgment.
- Scott schedules are to go; what is to replace them is not yet known. The Court heard submissions from Counsel of how a Scott Schedule can sometimes hinder rather than help the party making an allegation of controlling and coercive behaviour. This is because such behaviour is far more subtle and long lasting over a relationship and to reduce such behaviour to a few date-specific factual allegations on a Scott Schedule can have the effect of diluting the seriousness of what is being alleged. Interestingly, the Court heard proposals of a schedule that was more akin to a threshold document but made no indication. It seems likely though that the end product will be some blend between a threshold document and a key narrative statement which addresses the overall experience of being in a relationship with the other parent.
- The Court was keen to stress that the Family Courts should not turn to criminal law principles when hearing allegations of domestic abuse which involve criminal behaviour such as rape. The Court emphasised that ‘family courts should avoid analysing evidence of behaviour by the direct application of the criminal law to determine whether an allegation is proved or not proved.’
Clearly, we have the benefit of some useful guidance for practice going forward but we would definitely encourage a full read of the judgment. Many paragraphs are dedicated to the appeals themselves however, readers will benefit from reading a few paragraphs of the Court setting out some of the suggestions and ideas of reform put forward by Counsel which are:
- CAFCASS completing an enhanced safeguarding assessment prior to the case being listed for a second gatekeeping appointment.
- Parties providing preliminary evidence to assist the court in determining whether a finding of fact hearing is necessary.
- The new ‘scott schedule’.
- Legal Aid for both parties
It seems when reading this judgment and baring ‘The Road Ahead’ in mind, we have been able to see a small glimpse of the change that is yet to come for the Family Courts but for now, the mood from the appellate judges is that the profession should be looking forward to the future.
So what should be watching out for? Unit Chambers will be eagerly awaiting the following:
- Report: Assessing Risk of Harm to Children and Parents in Private Law Children Cases: ‘The Harm Panel Report’
- Legislation: Domestic Abuse Bill [DAB]
- Pilot: Private Law Working Group recommendations
- Pilot: Integrated Domestic Abuse Courts (IDAC)