Re A and R (children)
| Jurisdiction | England & Wales |
| Judge | BAKER J |
| Judgment Date | 13 September 2018 |
| Neutral Citation | [2018] EWHC 2771 (Fam) |
| Court | Family Division |
Child arrangements – Findings of fact – Challenge – Coercive and controlling behaviour allegations – PD 12J – Considering impact on children of abuse found to have occurred – Lack of judicial continuity – Whether necessary to deal with every detail of each allegation – Allegation amended but particulars of allegation not amended – Whether persistent allegation of ‘inappropriate sexual behaviour’ was itself an example of coercive and controlling behaviour.
The parents were married in 2009. During the marriage they lived in central London and were well off; they were assisted in caring for their two children by nannies. Each accused the other of controlling behaviour during the marriage. The mother asserted that the father preferred the older child over the younger child; the father asserted that the mother was closer to the younger child and jealous of the father’s relationship with the older child. Each also alleged that the other behaved in an inappropriate way towards the children. By the end of 2015 the relationship was in serious difficulties and they began couple therapy. In May 2016 they separated. In August 2016 an incident occurred which, on the mother’s account, culminated in an assault on her by the father. Further alleged incidents followed.
In January 2017, the couple began mediation. The mediation continued over a period of months and involved over 100 hours of meetings, costing in excess of £50,000. In April 2017 the mother filed a divorce petition. Following extensive correspondence between the couple’s solicitors, the children were spending four nights with the father every fortnight, and seeing him at other times, on an interim basis. The parents continued to disagree as to the frequency of the father’s contact with the children and as to his behaviour during contact, in particular his alleged tendency to encourage the children to say that they were unhappy with the mother.
In July 2017, the father filed an application for a child arrangements order; he wanted the children to spend five nights a fortnight with him, including alternate weekends from Friday after school until Monday morning. He ticked the box marked ‘No’ in relation to concerns about a risk of harm. The mother’s lawyers warned that, if agreement could not be reached, the mother would ask the court to consider the father’s conduct towards her and the children and her safeguarding concerns, specifying allegations of domestic violence and harm. In August the mother’s solicitors issued her own application for a child arrangements order, together with a Form C1A setting out allegations of harm suffered by the children and of domestic abuse by the father. Cafcass was unable to speak to the father before sending the safeguarding letter, but on the basis of what had been said by the mother, referred the matter to the local authority.
At the August FHDRA it was agreed to appoint an independent social worker; directions were given in relation to the mother’s allegations, which were to be set out in a Scott schedule, limited to five allegations. Meanwhile, the mother was insisting that the children should be accompanied and supervised at all times while staying with the father, including on holiday. The father ultimately accepted that the only way in which a planned holiday to Spain could take place was with supervision by the nannies he had employed; he expressed this as a decision reached ‘under duress’. After returning from holiday, the father raised his own allegations about a risk of harm to the children, including emotional, psychological and sexual harm; he was permitted to raise four specific allegations. The parents were both required to give undertakings not to discuss these issues in front of the children, or to denigrate either parent or the nannies in the children’s hearing. An order was made for ‘general background supervision’ during contact with the father, by one of the nannies until a professional social worker could be identified. In October the independent social worker reported that there were no concerns and that the children were happy and adjusting well to the arrangements. In November the local authority report concluded that there were no concerns about contact between the children and the father and recommended that contact continue, unsupervised, at the current level. The author also commented on the father’s forceful behaviour, recommending that he engage with some therapeutic sessions to help him reflect on how he related to others.
A fact-finding hearing went ahead. The recorder, who had not previously been involved in the case, found that the father had assaulted the mother on more than occasion, but rejected a number of the details in the mother’s account. She also rejected the mother’s account of controlling and coercive behaviour, of inappropriate behaviour by the father, of lack of boundaries and of discussing matters with the children and encouraging them to disparage the mother and her family. The recorder went on to find that the mother had assaulted the father on occasion, but rejected the father’s allegations of behaviour causing the children emotional and psychological harm, other than a finding that the mother had put her tongue into the younger child’s mouth (reported by two nannies as having been seen). The recorder rejected the mother’s submission that some of the findings made against the father necessitated a risk assessment, but agreed that a s 7 report should be prepared, to include consideration of any issues as to risk. Pending the welfare hearing, the recorder directed that the children spend 5 nights every fortnight with the father, including alternate weekends from Friday after school until Monday morning.
In responding to the mother’s request for clarification of the judgment, the recorder said that she had reached her conclusion having regard to all the evidence and, in particular, the voluminous correspondence between the parties. The mother appealed, arguing, among other things, that it was no longer good enough for a judge to use that general phrase when explaining a decision, and pointing to both the comments made about the father’s ‘forceful behaviour’ in the local authority report and the father’s allegations of ‘sexually inappropriate behaviour’ as significant in this context.
Held– (1) The bitterly-fought nature of this battle over parental contact with children and the lack of judicial continuity had added to the challenges facing the recorder. Not infrequently private law cases were given lower priority than public law cases; given the acute shortage of judges at present, and the high demand of public law family cases, this was perhaps not surprising, but it could cause particular difficulties in private law cases. Also as observed in Re LG (re-opening fact-finding)[2017] EWHC 2626 (Fam), restricting the findings to be sought by the parties could give rise to difficulties, although this common practice was consistent with the FPR’s overriding objective. In this case the findings which each of the parties had asked the court to make (five for the mother, four for the father) had been notably disparate, so disparate that it would have been difficult for anyone to detect a pattern from the findings sought. If each party had been hoping to demonstrate a pattern of coercive, controlling and manipulative behaviour by the other, the hearing had not been designed to demonstrate such a pattern (see [58]–[60], below).
(2) The recorder’s approach had been careful and conscientious and her judgment had been based fundamentally on her careful and well-articulated assessment of the witnesses. Although she had not mentioned PD 12J in her judgment, the court was satisfied that she had had it firmly in mind, as illustrated by exchanges in the course of the hearing and questions raised in the course of submissions. The fact that she had not dealt in her judgment specifically with every single detail of the allegations did not undermine the reliability of her conclusions about each incident. There was no basis upon which to conclude that the recorder had failed to apply the correct definition of ‘domestic abuse’. This was plainly the issue that concerned her, which was why she had asked counsel about the meaning of ‘controlling and coercive behaviour’ during the course of submissions. The court was satisfied that she had had PD 12J and L v F[2017] EWCA Civ 2121 firmly in mind. The suggestion of unfairness was wholly without merit. The recorder’s view of the parties had been nuanced. She had been entitled to accept some parts of the evidence given by each of the parties but reject others (see [61]–[65], below).
(3) While the recorder had been obliged by para 29 of PD 12J to consider, insofar as she could, the impact on the children of the abuse which she had found both parents had committed, the absence of any conclusion in her judgment as to the impact of the domestic abuse on the children did not give rise to a ground of appeal. The recorder might wish to consider whether to make such findings at the forthcoming hearing, when she would have the benefit of the s 7 report (see [67], below).
(4) According to the allegations as originally pleaded and set out in the first version of the mother’s Scott schedule, and subsequently set out in the judgment, the coercive and controlling behaviour alleged by the mother had been directed towards the children, not towards the mother herself. The court accepted that the mother had later amended this allegation so as to include such behaviour directed against herself. Importantly, however, the particulars of the allegation of controlling and coercive behaviour had not been amended. The recorder had carefully considered the mother’s specific allegations of coercive and controlling behaviour and had rejected them all, whilst finding that the mother genuinely believed the father was controlling. In some cases, it might, indeed, not be enough for a judge...
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AB v XY (appeal: procedural irregularity: undue acceleration)
...s 33(7). Matrimonial Causes Act 1973, s 25(2). Family Procedure Rules 2010 (SI 2010/2955), r 30.12(3). Cases referred to A and R, Re [2018] EWHC 2771, [2019] 1 FCR 353. AA v NA[2010] EWHC 1282 (Fam), [2010] 3 FCR 327, [2010] 2 FLR 1173. B (a child),Re[2013] UKSC 33, [2013] 2 FCR 525, [2013]......