Tag Archives: finding of fact hearing

Fact finding in private law proceedings – where are we now?

This is the text of a presentation at the St Johns Private Law conference on 14th June 2023

To have or not to have a finding of fact hearing is a key decision in proceedings. Relationships that are ending up in court have ended badly. The adversarial process is undoubtedly harmful to parties and finding of fact hearings cause enormous delay. It can be very necessary to establish what happened, in order to make sensible decisions about the way forward, but the courts are not there to validate either party’s perspective as to why the relationship broke down or how horrible the other one was. The guidance is now very clear – Unless it will be relevant to, and necessary for, your decision regarding the welfare of the child, do not allow the court to be used to litigate such allegations.

These cases can be very difficult to run in practice, given how high emotions can run and how relatively unobjectionable behaviour during a relationship can be seen in a very different light once that relationship has soured. The gulf between the expectations of the client and what the court can deliver is often very wide indeed. The guidance with regard to decisions about findings of fact will be your shield against unreasonable client expectations.

I will examine the following

Some historical context
Summary of the May 2022 guidance
Case law – when it goes wrong

Some historical context

The family justice system is caught between two very polarised views; those who assert it is a tool of misogynistic oppression, with a ‘pro contact culture’ that routinely hands over children to violent men and those who assert it is absurdly pro women and happy to cut men out of their children’s lives. Those of us who work in the family justice system know that both positions are false. We are however very much alive to the problems caused by a system which lacks resources and judicial continuity. It’s fair to say that men and women feel equally traumatised and let down in the majority of proceedings.

Of recent years however, the campaigning groups who characterise the family courts as tools of misogynistic oppression have gained the ascendancy and the ear of the Ministry of Justice. This explains the renewed focus over the last few years on issues of domestic abuse in family proceedings.

We begin with the Victoria Derbyshire show in May 2019, whose eviscerating exploration of the family justice system, prompted the Ministry of Justice on 21^st May to announce that a ‘panel of experts’ would review how the family courts protect children and parents in cases of domestic abuse, and that this would be completed in only three months. I laughed at this remarkably optimistic time scale and I was right to do so – we didn’t see the finished ‘Harm Report’ until June 2020 [Assessing risk of harm to children and parents in private law cases https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/895173/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf]

I have been critical of this report as it relies primarily on self selecting accounts from those who felt badly done by the family justice system, with obviously no ability to fact check assertions they made. It was clearly written from the perspective of the ‘misogynistic oppression’ camp, identifying a ‘pro contact culture’ which resulted in ‘systemic minimisation of allegations of domestic abuse’. From my own experiences in practice over 20 years now, I think that is overstating it.

However, it identified other issues with which I can’t argue: resource constraints, working in silos and lack of communication and crucially the adversarial system itself, with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self representation, with little or no involvement of the child.

The stage was the set for the Court of Appeal decision Re H-N [2021] EWCA Civ 448 where it was argued that the family justice system’s understanding of domestic abuse was not fit for purpose.

The Court of Appeal considered the development of the family courts’ approach to issues of abuse. The definition of ‘abuse’ was expanded in 2017. PD12J paragraph 3 reflects the need to move away from characterising domestic abuse as separate incidents of violence, but looking more to patterns of acts and incidents, including incidents of controlling, coercive or threatening behaviour which can be demonstrated by psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.

We have come a long way from the 1970s and the focus on ‘violence’ only. No one argued before the court that this definition of ‘abuse’ should change and the Court of Appeal concluded therefore that it was fit for purpose. Although the structure of the definition of ‘domestic abuse’ in clause 1 of the Domestic Abuse Bill [‘DAB’] currently before Parliament differs from that in PD12J, the content is substantially the same.

The Court of Appeal therefore concluded:

We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse

The key guidance is at para 139:

Domestic abuse is often rightly described as pernicious. In recent years, the greatly improved understanding both of the various forms of abuse, and also of the devastating impact it has upon the victims and any children of the family, described in the main section of this judgment, have been most significant and positive developments. The modern approach and understanding is reflected in the ‘General principles’ section of PD12J(4). As discussed at paragraphs 36–41 above that does not, however, mean that in every case where there is an allegation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing, so much is clear from the detailed guidance set out in paragraphs 16–20 of PD12J and, in particular, at paragraph 17.

Summary of May 2022 Guidance from Lady Justice Macur for Judges and magistrates.

Make every hearing count.
Judges must remain in control.
Delay is inimical to child welfare.
It is for the judge to determine the need for a finding of fact. ‘

At the FHDRA / first directions appointment/ to be considered at gatekeeping

If a MIAM hasn’t taken place, ask why not – duty to consider non-court dispute resolution: FPR r3.3.

TRIAGE – what are the real issues in the case. Are they safeguarding concerns?

What is being alleged in terms of domestic abuse – look at definitions at FPR PD 12J [2A] and [3] in addition to PD 12J [14].

Has Form C1A been completed? Is there a response? If so, are there admissions? Can you see a possible way forward?

Have you got enough information to avoid seeking further evidence? If not, consider what is needed in the fact specific circumstances of the case.

The judgment in Re H-N [2021] EWCA Civ 448 (paras 41-49) cautioned against allowing a Scott Schedule to distort the fact finding process (by becoming the sole focus of a hearing), but did not rule out the use of a schedule as a structure to assist in analysing specific allegations. Specific allegations of physical abuse fit well with a schedule, other allegations that require the court to look at a pattern of coercive and controlling behaviour will require a statement. Probably most cases will benefit from both.

Is a fact-finding hearing required?

RELEVANCE, PURPOSE, PROPORTIONALITY AND MITIGATION

Consider:

the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child arrangements order;
that the purpose of a fact finding is to allow assessment of the future risk to the child and the impact of any abuse on the child;
whether fact-finding is necessary or whether other evidence suffices; and,
whether fact-finding is proportionate. Do the allegations at their highest go to safeguarding in general or could they be mitigated by supervision of contact or other measures?

If the decision is made to have a finding of fact hearing, then robust case management is required.

The court controls the evidence in the case. FPR r1.1, r1.4, r.4.1 and that the court controls the evidence in the case: FPR r.22.1.

No case should be timetabled to a fact-finding hearing without a properly completed witness template. This will assist the parties and manage their expectations.

Participation directions.

Section 63 Domestic Abuse Act 2021 established a presumption that where a party or witness is or at risk of being a victim of domestic abuse from a party to the proceedings, the quality of their evidence and/or their participation as a party is likely to be diminished by reason of vulnerability and this requires some thought.

Part 3A FPR deals with vulnerable witnesses and their participation in proceedings.. PD3AA para 5.2 requires a ground rules hearing (or ground rules component of a hearing) before the vulnerable person gives evidence. Participation directions are a general case management direction made for the purpose of assisting a witness or party to give evidence or participate in proceedings;

Consideration of FPR r.3A and PD 3AA are mandatory and the obligation to consider vulnerability is the court’s, regardless of whether a party is represented or if participation directions are sought.

Under sections 65 and 66 of the Domestic Abuse Act, the court will appoint a qualified legal representative (QLR) to cross-examine relevant witnesses if parties:

do not have their own legal representative
are prohibited by the court from cross-examining, due to allegations of domestic abuse

Lucy Reed KC has blogged about her frustrations with this scheme, noting in March 2023 that the QLR scheme was only introduced for cases issued after 21^st July 2022 and court listing is backed up, very few eligible cases have reached the finding of fact stage so far. But many more will be coming. And its not at all clear that enough people have signed up to the scheme to enable it to operate effectively. I will say no more, because I am not touching it with a bargepole. The removal of legal aid for private law family cases will risk the collapse of many hearings; where there will be no QLR and guidance for Judges is that they may not cross examine – which must be right.

Re-visiting a decision not to have a fact-finding hearing

The court must, at all stages in the proceedings, consider whether domestic abuse is raised as an issue: FPR PD 12J [5]. However, guard against attempts to re-argue the question once a decision has been made. What is said to have changed to undermine the original analysis? Proceedings should have judicial continuity, wherever possible, and a consistent approach.

If ‘new’ evidence relating to past events is presented, ask why it was not available or disclosed before. If no good reason is advanced, then you may refuse to admit it. The more significant the evidence is said to be, the more compelling the explanation needs to be for its late receipt.

Case Law – when it goes wrong.

B v P [2022] EWFC B18 (31 March 2022)

Parents made cross allegations against each other. The district judge found most of the mother’s allegations not proved, and the mother appealed.

The district judge was not referred to the need for a ground rules hearing, Part 3A of the FPR, practice directions 3AA or 12J; she was not referred to the definition of domestic abuse and she was not reminded of the decision in Re H-N.

At para 40 of the appeal judgment it is noted:

The judge does not set out a history of the relationship or a chronology of the events relied upon. She sets out each of the allegations made by either of the parents and considers whether it is proved or not proved. It appears to me that she did not follow the approach endorsed in Re H-N, of stepping back from the precise allegations and considering the behaviour as a whole. She did not rule on whether the father’s behaviour was coercive or controlling.

The judge also got some of the facts wrong – for example, finding that the respondent had not entered the appellant’s bedroom, when in both his oral and written evidence he admitted that he had, in order to gather up her clothes and throw them outside.

The court expressed sympathy for the district judge, who had to deal with a remote hearing, a litigant in person and an interpreter but regardless, the findings could not stand.

K v K [2022] EWCA Civ 468 (08 April 2022)

This case re-emphasised the general Re H-N guidance and provided a fresh emphasis on methods of ‘non-court’ dispute resolution and when they should be considered.

Briefly, the father submitted that the district judge had not considered his case that the mother had alienated the children and the findings made of rape, coercive and controlling behaviour and physical abuse of the children are unsound. The mother argued that there was a high threshold needed to over turn findings of fact, and it had not been reached in this case.

The Court of Appeal found that there had not been proper consideration of the need for a finding of fact, and the findings made were unsafe. The case would therefore be sent back to a circuit judge to decide if a fresh finding of fact is needed, following the guidance set out in Re H-N. In brief:

The parties had not taken advantage of a MIAM – Mediation Intake and Assessment Meeting and this might have resolved logistical issues about the father’s contact. The mother had initially agreed to unsupervised contact and had not seen the allegation of rape or generalised controlling behaviour as central to the resolution of the issues between them. .
Any judge considering a finding of fact must identify at an early stage the real issues in the case, as relate to the welfare of the child. A finding of fact is only necessary if the alleged abuse is relevant to what the court is being asked to decide relating to the children’s welfare.
The finding of rape was unsafe as the Judge did not consider all the available evidence, including the mother’s untrue assertion that she had reported this to the family doctor.

The key quote can be found at para 65:

A fact-finding hearing is not free-standing litigation. It always takes place within proceedings to protect a child from abuse or regarding the child’s future welfare. It is not to be allowed to become an opportunity for the parties to air their grievances. Nor is it a chance for parents to seek the court’s validation of their perception of what went wrong in their relationship. If fact-finding is to be justified in the first place or continued thereafter, the court must be able to identify how any alleged abusive behaviour is, or may be, relevant to the determination of the issues between the parties as to the future arrangements for the children.

So where next?

The family justice system puts proof of facts at its heart. An allegation which is not proved and which is not admitted is not a fact. I think there is a real risk to the fairness and integrity of court proceedings if a presumption is made at any stage that one party is more likely to be telling the truth.

In May 2023 the Ministry of Justice produced its implementation plan – a progress report of what’s happened since the Harm Report. Of particular note is the Domestic Abuse Act, automatic eligibility for special measures, right to be supported in court by an IDVA, the pilot scheme in courts in Devon and North Wales launched in February 2022. The November 2020 review of the presumption of parental involvement remains ongoing!

But the language of this report is interesting. It speaks only of ‘victims’ and ‘perpetrators’ – no room for ‘alleged’ or ‘assertions’. This speaks very much to the FJS as ‘tool of misogynistic oppression’ and I do not think this is helpful.

There remains considerable dissatisfaction from campaigning groups. Women’s Aid issued a statement in May 2023 about its view of progress since the Harm Report

Almost three years on from the Harm Panel report, we have not seen evidence of ‘cultural changes’ to improve safety for women and children experiencing abuse. This was a landmark report and we had high hopes for the change which was promised – but we continue to hear day in, day out from survivors that they are still experiencing disbelief, danger and trauma within the family courts.

….. We remain unclear what ‘compulsory’ training on domestic abuse for judges includes, and in our experience women who allege domestic abuse continue to face discrimination and victim-blaming attitudes when trying to secure safe child contact arrangements for their children.

“We urge the government, judiciary and family court professionals to work together with specialist domestic abuse organisations and survivors to deliver the system wide reform which is still so desperately needed to ensure children are put first in the family courts.”

The tensions will of course always remain between those who see cases primarily through the eyes of a ‘victim’ who ought not to have to prove herself and be re-traumatised and those who must apply and obey fundamental legal principles in articles 8 and 6 of the ECHR. The likely collapse of the QLR scheme does not bode well for anyone.

But all we can do is try and manage those tensions as best we can and in the framework set by law. And resist unilateral attempts by single issue campaigning groups to influence law and policy.

What happens when a child gets hurt and we don’t know who did it?

In the light of concerns about the Ben Butler case in June 2016, this post by Sarah Phillimore attempts to explain the law that will apply in the family courts when a child has been hurt and there are a number of adults who could have done it – the so called ‘pool of perpetrators’.

If you want to know more about the practicalities of the court process from a parent’s perspective, please see this guest post by Suesspiciousminds ‘The Social Worker tells me my child has been hurt’.

There is often confusion expressed about why both criminal AND family cases can run together, based on the same concerns that a child has been hurt. In some cases, the criminal proceedings will stop or not even start and only the family case continues. This is because of the different roles and responsibilities of the criminal and family courts. Criminal courts, in essence, exist to identify criminals and punish them. As punishment can involve a deprivation of liberty by sending someone to prison, the standard of proof is high – ‘beyond reasonable doubt’.

Family cases however are about protecting children so the focus is different and the standard of proof is lower. There are many parents however who argue that it is simply wrong to make findings about children being injured and remove them from their families on the basis of that lower standard of proof. However, it will probably take an Act of Parliament to change this as Judges are now very clearly bound by decisions of the Supreme Court.

The relevant law – general principles about establishing facts

The court should consider the following issues when it needs to make a finding about what happened in any particular case:

Articles 6 and 8 of the European Convention on Human Rights [ECHR] which means the court must respect the right to family life and the right to a fair trial.
A finding of fact by a Judge that someone hurt a child is a serious thing; therefore anyone at risk of such a finding being made against them must have a chance to be part of the court proceedings and be able to make their case. If someone is a vulnerable adult and needs help from, for e.g. an intermediary, this should be considered by everyone at an early stage
The ‘burden of proof’ lies on the person who makes the allegation, in this case the local authority. This means that it is not the adult’s responsibility to prove they did not hurt the child; the local authority must prove they did.

Burden and standard of proof in ‘binary’ system

The standard of proof is the ‘balance of probabilities’ – it must be more than 50% likely that something happened: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.
If a fact is to be proved the law operates a ‘binary system’ which means it is either true or it is not.
Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”.
The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.
If it is suggested that something is ‘very unlikely’ to have happened, that does not have an impact on the standard of proof. See BR (Proof of Facts) [2015] EWFC 41 (11 May 2015) where Jackson J commented at paras 3 and 4:
The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observed:
“Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

What happens if a witness lies about something?

An important part of the assessment is what the court thinks about the reliability of the adult’s evidence. The court will be worried if someone is found to have lied about something, but that does not necessarily mean that person has lied about everything. The court will keep in mind the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert witnesses

With regard to evidence provided by expert witnesses, the court should consider the following:
- First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370.
- Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

Particular considerations in a case when a child has suffered injury

The court will consider the decision of the Supreme Court in in Re S-B (children) (non-accidental injury) [2009] UKSC 17.

Was the injury an accident?

If the court is satisfied that the child sustained injuries, the first question is whether they were caused ‘non accidentally’.
The court is reminded of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
For an example of an injury deemed accidental, see EF (a child), Re [2016] EWFC B107 (15 September 2016) the court accepted the parents’ account and thus the LA had not made out its case.

If it wasn’t an accident – who did it?

Having established the injury was not an accident, attention turns to whether or not the court can say who caused the injury. The ‘threshold criteria’ (what the court needs to find proved in order to make a care order) can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, it is clearly a good idea to identify who has caused the injuries:
- to be as clear as possible about future risks to the child and how to deal with those risks.
- The child has a right to know what happened to him, if it is possible to find out.

How hard should the court try to find out who did it?

However, the court should not ‘strain unnecessarily’ to identify who hurt the child. If the evidence does not support a specific finding against an individual(s) the court should attempt to identify the ‘pool’ of possible perpetrators. See Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849.
- The identification of a pool of possible perpetrators is sometimes necessary in order to determine if the child’s parents or carers are to blame for the harm suffered by the child. If the child was hurt by someone outside the home or family – for example by someone at school or at hospital – then it would usually be unfair to say that this is the parent’s/carer’s fault.
- In considering whether a particular individual should be within the pool of possible perpetrators the test is whether there is a real possibility that he or she was involved.
- If the court identifies a pool of possible perpetrators the court should be wary about expressing any view as to the percentage likelihood of each or any of those persons being the actual perpetrator. (In the words of Thorpe LJ: “Better to leave it thus”).

What happens in the future if a parent is found to be in the ‘pool of perpetrators?’

As a parent, this could have a serious impact on your current or future family life. You may find that you need to submit to a risk assessment from the local authority if you want to care for your children.

However, if you become involved in care proceedings in the future, the court is clear that a previous finding that you were ‘in the pool’ can NOT be treated as simply ‘proof’ that you hurt a child and it cannot be used in this way as part of any threshold document to assert that your current children are at risk.

However, the fact that a parent was part of a household where a child suffered injury, cannot just be ignored and will need to form part of a careful assessment of current circumstances.

See In the matter of J (Children) [2013] SC 9 – the judgment of Lady Hale at para 52:

52. It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No-one has ever suggested that that fact should be ignored. Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child. How many injuries were there? When and how were they caused? On how many occasions were they inflicted? How obvious will they have been? Was the child in pain or unable to use his limbs? Would any ordinary parent have noticed this? Was there a delay in seeking medical attention? Was there concealment from or active deception of the authorities? What do those facts tell us about the child care capacities of the parent with whom we are concerned?

53. Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time? Did drink and/or drugs feature? Was there violence between the adults? How have things changed since? Has this parent left the old relationship? Has she entered a new one? Is it different? What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned? Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household?

54. Hence I agree entirely with McFarlane LJ when he said that In re S-B is not authority for the proposition that “if you cannot identify the past perpetrator, you cannot establish future likelihood” (para 111). There may, or may not, be a multitude of established facts from which such a likelihood can be established. There is no substitute for a careful, individualised assessment of where those facts take one. But In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

It is very important to investigate all the surrounding circumstances thoroughly and not to risk reversing the burden of proof. The Court of Appeal commented in B (Children : Uncertain Perpetrator) (Rev 1) [2019] EWCA Civ 575 (04 April 2019) that it might be better to talk more about a ‘list’ than a ‘pool’.