Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings)
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWCA Civ 448 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
2021 Jan 19, 20, 21; March 30
Practice - Family proceedings - Domestic abuse - Allegations of domestic abuse made in private law children proceedings - Guidance as to conduct of fact-finding hearings -
FPR PD 12J is and remains fit for the purpose for which it was designed, namely to provide a structure enabling the court in private law proceedings involving children first to recognise all forms of domestic abuse and thereafter on how to approach allegations of domestic abuse. The circumstances encompassed by the definition of “domestic abuse” in PD 12J, para 3 fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident. It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be “abuse” in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour (post, paras 28–32).
When the court is deciding whether it is necessary to conduct a fact-finding hearing with respect to allegations of domestic abuse, it should first consider the nature of the allegations and the extent to which they are likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms: PD 12J, para 5. The court should also have in mind the purpose of a fact-finding hearing, which in broad terms is to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children: PD 12J, para 16. Careful consideration must be given to PD 12J, para 17 as to whether it is “necessary” to have a fact-finding hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and, importantly, the relevance to the issue before the court if the allegations are proved. It will not be appropriate or necessary for there to be a fact-finding hearing in every case where there is an allegation of, even very serious, domestic abuse (post, paras 37, 139).
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: PD 12J, para 19(c). Serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be (post, paras 42–49).
In many cases where there is an allegation of domestic abuse, the primary question is likely to be whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour, irrespective of whether there are other more specific factual allegations to be determined. The approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being in the past, and therefore of little or no relevance in terms of establishing a risk of future harm, is no longer acceptable. Where an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error (post, paras 51–53).
In cases where an alleged pattern of coercive and/or controlling behaviour falls for determination, and the court has made that issue its primary focus, the need to determine a range of subsidiary date-specific factual allegations will cease to be “necessary” (unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour). How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straightforward, question. Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of PD 12J, para 16, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape) (post, paras 56–59).
In proceedings relating to the welfare of children it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence based upon criminal law principles and concepts. A family judge making a finding on the balance of probabilities is not required to decide, and does not decide, whether a criminal offence has been proved to the criminal standard. Any use of familiar criminal law terms, such as “rape”, should not give the impression that the abusive partner has been convicted by a criminal court (post, paras 65–66, 71–73).
An appellate court is only entitled to interfere with a decision of a judge at a fact-finding hearing where the decision exceeds the generous ambit within which reasonable disagreement is possible and is, in fact, plainly wrong. Full allowance is to be afforded to the trial judge who has heard the evidence and been exposed to the parties and the detail of the case over an extended period (post, paras 75–76).
The following cases are referred to in the judgment of the court:
A Local Authority v S, W and T
B (Children) (Care Proceedings: Standard of Proof), In re
F v L (Child Arrangements Order: Relocation)
F v M
F v M (Appeal: Finding of Fact)
H (Minors) (Sexual Abuse: Standard of Proof), In re [
Hutcheson v Popdog Ltd (Practice Note)
JH v MF (Child Arrangements: Domestic Abuse: Appeal)
JS (Children), In re
L (A Child) (Contact: Domestic Violence), In re [
Ladd v Marshall [
McCauley v Vine [
Piglowska v Piglowski [
R (Children) (Care Proceedings: Fact-finding Hearing), In re
U (A Child), In re
Vaughan v Vaughan
The following additional cases were cited in argument:
A (Fact-Finding: Disputed Findings), In re
A (Legal Parenthood: Written Consents), In re
H (A Child), In re
Q (Children), In re
R (A Minor) (Consent Order: Appeal), In re [
R v P (Children: Similar Fact Evidence)
S (A Child) (Abduction: Hearing the Child), In re
Yousef v The Netherlands (Application No 33711/96) [
The following additional cases, although not cited, were referred to in the skeleton arguments:
A (A Minor: Fact Finding: Unrepresented Party), In re
C (A Child) (Recusal), In re
Elsholz v Germany (Application No 25735/94) [
H (Children) (Care Proceedings: Appeals out of Time), In re
Hokkanen v Finland (Application No 19823/92) [
J (Children) (Contact Orders: Procedure), In re
M (Children) (Non-Accidental Injury: Fact-finding Hearing) (No 2), In re
Mabon v Mabon
N (A Child), In re
Porter v Magill
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