K v K
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos |
| Judgment Date | 08 April 2022 |
| Neutral Citation | [2022] EWCA Civ 468 |
| Docket Number | Appeal No: CA-2021-000038 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 468
Sir Geoffrey Vos, MASTER OF THE ROLLS
Sir Andrew McFarlane, PRESIDENT OF THE FAMILY DIVISION
and
Lady Justice King
Appeal No: CA-2021-000038
Case No: PE19P01623
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH
HH JUDGE MELLANBY
ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH
DISTRICT JUDGE CAPON
Royal Courts of Justice, Strand
London WC2A 2LL
The appellant father appeared in person
Jessica Lee and Lucy Maxwell appeared for the respondent mother
Hearing date: 2 March 2022
APPROVED JUDGMENT
Sir Geoffrey Vos, Master of the Rolls, giving the judgment of the court:
Introduction and summary of conclusions
This judgment is intended to provide general guidance on the proper approach to fact-finding hearings in private family proceedings following this court's decision in Re H-N [2021] EWCA Civ 448 ( Re H-N). We should say at once, however, that we endorse Re H-N, and note that the District Judge in this case reached his decision before Re H-N was handed down. Nothing we say in this judgment on that subject can, therefore, be regarded as a criticism of him.
The issues in this case relate solely to whether the findings of fact made by District Judge Capon (the judge) should be over-turned. On the first appeal, Her Honour Judge Mellanby upheld those findings, but we have given permission for all the father's grounds of appeal to be re-argued. In the broadest outline, the father submits that the judge ought to have considered his case that the mother had alienated his children, and that the factual findings that the judge reached as to rape, coercive and controlling behaviour, and physical abuse of the children are unsound and failed to take into account the bigger picture. The mother argues that the high threshold needed to overturn such findings is not reached.
The basic facts are that the father and mother married in 2005 and separated in August 2017. They have three children: a girl (A) born on 31 May 2009 (aged 12), and twins (both now 9) born on 29 March 2013 (a boy, B, and a girl, C). The father had regular unsupervised contact with the children for some time before the logistical arrangements for that contact led to disagreements between the parents. In early 2018, A refused to see her father, but the twins continued to do so. In December 2019, the father issued his C100 application complaining of parental alienation and seeking to formalise the weekends and holidays at which he could see the children. He used the urgency of the situation as Christmas approached to claim exemption from a Mediation Information and Assessment Meeting (MIAM). There followed a C1A form (the C1A) filed by the mother on 12 February 2020 and subsequently a safeguarding letter from Cafcass produced just before the FHDRA (First Hearing and Dispute Resolution Appointment) that took place before the judge on 26 February 2020. The C1A was completed by the mother's then solicitor on her behalf and made a number of relatively minor allegations against the father, but not the main ones of controlling behaviour and rape with which the case is now concerned. The mother's C1A did not object to the father spending unsupervised time with the children. The safeguarding letter raised the alleged rape as an issue and advised the court to consider a fact-finding hearing.
At the FHDRA, Ms Jessica Lee, who also appeared as counsel for the mother before us, said that the priority allegations were what B had said at school (an allegation that has since fallen away) and in relation to the father's sexual boundaries and inappropriate behaviour in relation to the children. It was the judge who asked whether the allegations to be resolved would include the alleged rape. Ultimately, the judge directed a two-day fact-finding hearing. The issues as tried were: (i) allegations of rape during the marriage, (ii) verbal abuse and bullying exemplified by WhatsApp exchanges between the father and mother on 18 June 2019 (the June 2019 WhatsApp), (iii) controlling behaviour, (iv) an incident on 23 January 2018 where the father had allegedly upset A by asking questions about what the mother had said about him, (v) an allegation of encouraging the children to get into bed with the father whilst he and his partner were naked, (vi) physical abuse of the children exemplified by flicking B's ear, and (vii) financial control. The judge gave no specific reasons for his decision to order a fact-finding hearing. At the 2-day hearing on 24 and 25 August 2020, the judge found each of the allegations proven except the incident concerning the children getting into bed and financial control.
Our conclusions may be briefly summarised as follows.
First, it was unfortunate that the parties in this case did not take advantage of the MIAM. Had they done so, the issues between the father and mother that concerned the logistics of the father's contact might have been speedily resolved before the inevitable trauma caused to the family by the fact-finding process. The mother had agreed to unsupervised contact and did not, at that stage, see the alleged rape or generalised allegations of controlling behaviour, bullying and physical abuse of the children as central to the resolution of the issues between them.
Secondly, the FHDRA is, as its name suggests, primarily an opportunity for judicially led dispute resolution. Had the mother confirmed her C1A at the hearing to the effect that she did not object to contact, the logistics might have been sorted out by agreement. This was a possibility that should have been explored.
Thirdly, it is important that a judge considering ordering a fact-finding hearing identifies “at an early stage the real issue in the case in particular with regard to the welfare of the child” (see [8] and [139] in Re H-N). As [14] of FPR PD12J provides, “[t]he court must ascertain at the earliest opportunity … whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child”. [17(g)] of FPR PD12J is to the same effect. 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.
Fourthly, the finding that the father raped the mother during the marriage is unsafe because the judge failed to look at the matter in the round. He focused too heavily on the question of whether the mother had had a conversation complaining about the father's conduct, rather than considering all the available evidence including the mother's untrue assertion in her Scott Schedule that she had reported a version of the incident to the family doctor.
Fifthly, the judge ought to have considered all the allegations in the context of the contention that most fundamentally affected the question of future contact, namely whether the father was demonstrating coercive and controlling behaviour affecting the children's welfare after the separation.
Sixthly, whilst the allegations of bullying in the June 2019 WhatsApp, of chastising B on one or two occasions by ear flicking, and of upsetting A by pressing inappropriate questions, were made out, the generalised allegation of coercive and controlling behaviour was not. The judge had found no evidence of financial control, yet went on to find controlling behaviour after the separation based mainly on the WhatsApp messages on a single day. The judge had correctly found that the ear flicking did not amount to child abuse, yet allowed his order to suggest that he had found physical abuse of all three children to have been proven (when he had not).
Seventhly, the appeal must therefore be allowed and the case sent back to a Circuit Judge for a decision to be made as to whether a fresh fact-finding hearing is required on the basis of the principles set out in Re H-N and this judgment. The court urged the parties at the conclusion of the appeal hearing to consider, whether, even at this late stage, there was room for some compromise in the best interests of their children. Successful mediation or other consensual resolution would be very much for the benefit of the children.
Once we have set out some further necessary factual context, we will deal with the issues we have mentioned in the order indicated by our conclusions.
Further factual context
After a short pause following the separation in August 2017, a regular arrangement for B and C to stay overnight with their father commenced in October 2017, and all three children spent Christmas 2017 with him. In May 2018, the father moved to live some 130 miles away. Despite this move B and C continued to stay with him each alternate weekend, including over Easter 2018. A, as we have said, had by this time refused to have any further direct contact her father.
By June 2019, the father had sold his car because he was short of funds. He could only transport the twins to his home for contact by using his new partner's vehicle. That vehicle was only available to him on alternate weekends, which were not the weekends when the father was booked to have the twins. Accordingly, the father asked the mother to swap the contact weekends around. The mother was unable to do this in the short-term as she had booked to work on the father's contact weekends and it was not, apparently, possible to change her work rota without a period of notice.
These practical difficulties set the context for the June 2019 WhatsApp, which the father put before the court. Whilst the messages demonstrate increasing frustration by the father exemplified by his threats to issue proceedings if the matter was not resolved, it is of note that the mother clearly said: “I have said I will swap weekends within the next couple of...
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