Re B (a child) (allegations of domestic abuse in private law proceedings)
| Jurisdiction | England & Wales |
| Judge | McFARLANE P,PETER JACKSON,COULSON LJJ |
| Judgment Date | 02 November 2022 |
| Court | Court of Appeal (Civil Division) |
Children arrangements – Domestic abuse allegations – Fact-finding – Evidence – Applicable principles – Relevance, purpose and proportionality – Whether allegations were relevant to court’s determination and how to assess that without a fact-finding.
In 2010, the parents began a relationship and in 2014 they began to live together; the child was born shortly after this. By 2018 the mother was showing signs that she had a problem with alcohol. In August 2019, she left the family home, taking the child with her. She spoke to the local authority alleging domestic abuse by the father, including a pattern of controlling and coercive behaviour, causing or contributing to her alcoholism. For a time the mother remained as the child’s main carer, with the father having contact and the child identified as a child in need.
However, the mother’s condition deteriorated further and in February 2020 she went into hospital as an inpatient undergoing detoxification. During her two-month hospital stay, the child was placed with a maternal uncle and aunt, with the father’s agreement. The child continued to have contact with the father, who at the time was in a relationship with a new partner.
In March 2020, the father began private proceedings, seeking an order that the child should live with him. A FHDRA was listed for June 2020, but at the end of March, before the mother left hospital, the father retained the child at the end of contact time. The mother issued an application for the child to be returned to her care, in which she again raised allegations of domestic abuse by the father. This application was adjourned to the June hearing. In April the father’s relationship with his new partner came to an end. In May 2020, the mother relapsed and in July she returned to hospital for a further three weeks of detoxification.
The mother’s case was that she remained sober following her second discharge from hospital. Under a series of orders she began to have increasing contact with the child until she was eventually looking after the child overnight for five nights each fortnight. Both parents accepted that the child would be having substantial unsupervised contact with the other parent. The question for the court in the private proceedings was where the child’s main home should be. The father argued that the child was now settled and doing well and should remain based with him. The mother argued that she had always been the child’s main carer and that she was now in a position to resume that role. In particular, she argued that, in the light of her allegations of domestic abuse, she was the parent who was better placed to give the child a secure and healthy emotional upbringing.
In September 2020, the local authority filed a s 7 report which made only a brief reference to the mother’s domestic abuse allegations. In October 2020, the magistrates refused the mother’s request for a fact-finding hearing but directed her to file a statement and said that it would be a matter for the court at the final hearing to decide whether it needed to adjudicate on any allegations. A two-day final hearing was fixed for 31 March 2021. On 23 March, the mother filed a long statement setting out her case. On 30 March 2021, the Court of Appeal’s judgment in Re H-N (children) (domestic abuse – finding of fact hearings)[2021] EWCA Civ 448 was handed down; in consequence, the magistrates adjourned the final hearing and reallocated the case to a district judge.
On 28 May 2021, a deputy district judge determined that ‘a fact-finding hearing on the allegations of domestic abuse was not necessary for the purposes of the court’s assessment of risk in the light of the other evidence available to the court and the parties’ respective positions as to the child arrangements’. A further s 7 report was ordered and directions were given for a PTR in November and a final three-day hearing in December 2021.
Although the mother did not appeal this decision, in October 2021, she filed an application seeking fresh consideration of whether there should be a combined fact-finding and welfare hearing, and also seeking permission to file a statement from the father’s former partner. In this statement, the father’s former partner said that she had never met the mother but had experienced domestic abuse by the father during her relationship with him; she also gave an account of the father’s attitude towards the mother and his planned retention of the child in 2020. At the PTR, the final hearing was adjourned. The mother’s application was listed for determination for the first day of the final hearing. When it was eventually filed, the s 7 report raised no current safeguarding concerns and made no reference to the domestic abuse issue.
In December 2021, the recorder dismissed the mother’s application for a composite fact-finding/welfare hearing and refused her permission to file the statement from the father’s former partner. The judge said ‘I am not at all convinced that the admission of this additional piece of evidence is going to assist the Court and the mother has clearly set out her position in relation to the allegations of the abuse she says she suffered at the hands of the father and they would be far more directly relevant to the welfare interests of [V] because her allegations span the period of both before [V] was born and afterwards and those would be the relevant issues that the Court should look at in the final hearing’. He went on to transfer the case to a more local court and ordered a DRA hearing on a date after 18 April 2022 and a 3-day final hearing, on the first available date after 2 May 2022. This led to a listing for November 2022. He also ordered a further s 7 report on the basis that the previous report was inadequate for want of a welfare checklist analysis or any recommendation. His resulting order included a recital:
‘[T]he Court applied PD 12J and Re H-N (2021) and determined that findings of fact are not required on the allegations of domestic abuse. This was on grounds that it is not necessary in light of other evidence available to the court and would in any event be disproportionate having regard to the parties’ respective positions as to the child arrangements and that matters regarding how the final hearing should be conducted should be considered by the Judge at the PTR/DRA which the Court hoped would be reserved before the same Judge for judicial continuity’.
The mother appealed. By the time the appeal was heard, the further s 7 report was available; this, again, raised no safeguarding concerns and referred only briefly to the mother’s allegations. The High Court judge dismissed the mother’s appeal and the mother appealed again, this time to the Court of Appeal.
Held, allowing the appeal and remitting the decision to the judge at the final hearing—
(1) The principles governing the court’s approach to whether it should make findings of fact about allegations of domestic abuse were now well-established. Grounded in FPR PD 12J, they were explained in Re H-N (children) (domestic abuse – finding of fact hearings)[2021] EWCA Civ 448 and Re K (children)[2022] EWCA Civ 468 and summarised in the President’s Guidance of 5 May 2022. As set out in PD...
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