This is the text of a presentation given at the Bristol Civil Justice Centre on 19th January 2022, considering how the Court of Appeal’s guidance in Re H-N has been working out ‘on the ground’ We are left with the distinct impression that its not possible to resolve the tension between two competing principles – undertake a sensitive and detailed analysis of patterns of behaviour in a relationship AND take up less of the court’s time. But the need for early and robust findings of fact is clear.
We first met to discuss this in May 2021 and we thought it would be helpful to meet again to see how the guidance was working on the ground. I am going to remind you of the Court of Appeal guidance and consider how it was applied in the case of A Child (Application of PD12J : No.2 – Findings of Fact)  EWFC 2 (12 January 2022)
Neutral Citation Number:  EWCA Civ 448
In March 2021 the Court of Appeal handed down its judgment in four conjoined appeals. A number of intervenors were involved, including the Association of Lawyers for Children and Families Need Fathers. The Court of Appeal was clear that PD12J was ‘fit for purpose’ – the issue was how it was being implemented in proceedings.
The first 77 paragraphs deal with some general guidance. The fundamental issue was, where domestic abuse is alleged in children cases, should the focus be on patterns of behaviour rather than specific incidents?
Summary of guidance
The Court of Appeal will expect to see recognition of the following issues in cases involving allegations of domestic abuse.
Do we need a finding of fact hearing?
- At the earliest stage, consider the detailed guidance in PD12J about the need for a finding of fact.
- Remember that PD12J is focused on child arrangement orders – it does not establish a free-standing jurisdiction to determine domestic abuse allegations that are not relevant to child welfare issues.
- Fact finding hearings are to provide a factual basis for assessments or orders/interventions
- Only allegations that are necessary for assessment purposes or particular orders should be considered
- Does the fact finding need to be a separate hearing, or can it be bundled up with the final hearing?
CAFCASS made the very sensible suggestion that it would help to have more input from their officers at an earlier stage to help answer these questions and the Court of Appeal agreed this was a good idea worthy of more consideration – I am not sure how this is playing out on the ground.
Awareness of ‘patterns of behaviour’ means we have to consider the limitations of a Scott Schedule as a means of pleading a case
- In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other
- Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and a fact-finding is necessary, 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).
BUT how do we square the circle between increased focus on pattens of behaviour and a need to save court time and scarce resources?
In essence, decisions about fact findings must be made at an early stage and any interim arrangements for contact must be safe for the child. The key words are ‘proportionality’ and ‘necessity’. We have to keep in mind the ‘overriding objective’ to deal with cases efficiently and recognise that resources are finite and need to be allocated to other cases than just our own.
As the President’s Guidance ‘The Road Ahead’ (June 2020) set out:
‘if the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.’
But the Court of Appeal at para 54 were alert to the immediate tension that exists, between dealing with matters efficiently and doing justice to allegations of ‘patterns of behaviour’. I have certainly never experienced two week finding of fact in a private law case – I consider myself very lucky if I can get a day within a reasonable timescale.
In promoting the need for courts to prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations, there is the potential that this additional layer of evaluation may add to an already lengthy forensic evaluative process. By example, the fact-finding hearing that had been listed in Re B-B (one of the four appeal cases before the court) was planned to last five days (that is 25 court hours) in order to consider five factual allegations.
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 straight- forward, question.
A number of suggestions were made by the parties in submissions including;
- a ‘threshold’ type document, similar to that used in public law proceedings,
- formal pleadings by way of particulars of claim as seen in civil proceedings and
- a narrative statement in prescribed form.
A recent case is a useful illustration of the difficulties of trying to ‘square the circle’
A Child (Application of PD12J)  EWFC B59 (6 October 2021) sets out the tension so often apparent in private law cases – either one party is a victim of domestic abuse, including sexual abuse and controlling and coercive behaviour, with the children being exposed to this abuse or one party has laid a trail of false and/or exaggerated allegations to justify removal of the children from their family home or refusal to permit contact with the other party.
On 30th September 2021 HHJ Dancey gave permission to appeal to the mother of three children, aged 10, 8 and 5 from an order made by a district judge three days earlier that she return the children from the North of England to Dorset and for shared time with their father. In default of return the district judge had made a transfer of ‘residence’ order. The mother alleged significant abusive behaviour from the father, including that he had lied about being HIV positive and had repeatedly raped her.
One ground of appeal was that the judge failed to address PD12J at any point in his judgment and failed therefore to consider the harm the mother and/or the children would suffer if he made the orders sought, the level of supervision required, the risk to the children and the impact domestic abuse could have on their emotional well-being and the safety of the mother. He treated it effectively as a summary return in a relocation case.
The Judge found the district judge was entitled to take a critical view of the mother’s position and weigh that in the balance. He was also entitled to expect a rational explanation for a move of such distance and to consider the proportionality of the mother’s decision-making. But he was not entitled to dismiss the mother’s allegations summarily, ignore CAFCASS recommendations and fail to properly consider PD12J.
It’s worth reading the submissions in full as they set out the huge difficulties of these kind of cases.
Judge commented at para 120
The acutely difficult question the present appeal poses is the balance to be struck by the court between (a) the potential harm identified by PD12J of making orders that may place children at risk of the consequences of domestic abuse and (b) the emotional harm and potential relationship damage that may be caused by unilateral removal a considerable distance away from the family home and cessation of contact.
These are decisions that have to be made on an urgent basis, often with limited and untested information. Get it wrong and the court risks placing children at risk of harm either way. This is a welfare analysis that requires caution, balance and proportionality – often not easy to achieve at an interim stage.
Para 122 he endorses the framework of analysis proposed by Peter Jackson LJ in the different context of public law care and placement orders in Re F (A Child) (Placement Order: Proportionality)  EWCA Civ 2761 :
a) What is the type of harm that might arise (for present purposes, putting the mother’s case at its highest)?
b) What is the likelihood of it arising?
c) What would be the consequences in terms of severity of harm if it happened?
d) Can the risks of harm happening be reduced or mitigated so that they are manageable (including in this case by the making of protective measures)?
e) What does a comparative evaluation of the advantages and disadvantages of each option (here, return or not, contact or not) say about the best interests of the children, having regard also to the need to protect a parent vulnerable to abuse?
f) Is the outcome proposed proportionate?
At para 124 the judge comments that the court is not bound to simply accept whatever a party says without some kind of critical analysis but at an interim stage is required to consider the circumstances around the allegations, including:
a) the seriousness of the allegations and the harm that might result;
b) whether there is already evidence from other sources which supports or undermines the allegations;
c) the consistency or otherwise of the allegations (making allowance for the fact that it is in the nature of domestic abuse that accounts are often given piecemeal and incrementally, especially in relation to allegations of sexual abuse which may be delayed because of embarrassment, shame or simply thinking ‘I won’t be believed’);
d) possible motivations for making allegations;
e) how the children are presenting and what they are saying.
His last comment at para 139 is interesting
I should add that the current practice, driven by resource demands, of Cafcass not interviewing both parents for the purpose of preparation of the safeguarding letter has contributed to the sense that the Cafcass recommendations were based solely on what the mother told them. At the moment Cafcass are leaving it until the FHDRA before speaking to the parties at court. I am concerned that interviewing parents in this pressured environment rather than independently away from court risks safety issues being missed. In this case of course the hearings were on non-Cafcass days and there was no opportunity to speak to both parents even at court. The father was not spoken to by Cafcass at all until after the decision under appeal.
The finding of fact was then heard in December, court reminding itself that Section 63 of the Domestic Abuse Act 2021, which came into force on 1 October 2021, requires amendment of the Family Procedure Rules to ensure that, where a person is, or is at risk of being, a victim of domestic abuse carried out by another party, or relative of another party or witness, it is to be assumed that the quality of their evidence and, where they are a party, their participation in the proceedings, are likely to be diminished by reason of vulnerability.
The following special measures were therefore put in place
a) separate waiting areas were arranged for the mother;
b) in court the father was screened from sight by the mother and arrangements were made when going in and out of court and during adjournments to ensure she would not see the father;
c) the mother was screened from the father while giving her evidence from the witness box;
d) breaks were taken during the mother’s evidence which spanned the afternoon of the first day of the hearing and the morning of the second and took some 5 hours;
e) additional opportunities for breaks were offered to the mother at points when she appeared to find questions about intimate matters particularly difficult, although in fact the mother opted to carry on;
f) given that there were some long pauses before the mother was able to answer some questions, I ensured that adequate time was given to the mother to answer questions fully before moving on to the next.
The difficulty for the court was that one of the parties had to be lying. Their starkly different accounts could not be resolved. The Judge was clearly alive to the difficulties In assessing the evidence of victims of trauma – at para 180 he said
This has been a troubling and difficult case. Experience shows that victims of domestic abuse, who are by definition vulnerable witnesses, sometimes find it difficult to talk about intimate and highly personal information, particularly allegations of sexual abuse. Because victims live in a state of fear, with patterns of abusively controlling behaviour, it is not uncommon for dates and incidents to become confused. Lived experiences are revealed over sometimes lengthy periods, including during court proceedings and, in my recent experience, in the course of giving evidence. Sometimes this iterative process is a matter of victims gaining the independence and courage to talk about their experience. Sometimes something is said which triggers a victim to be able to speak.
However on a careful analysis of the evidence he found that the mother had fabricated allegations against the father to justify her departure from an unhappy marriage. Although the father’s failure to disclose his HIV status was ‘abhorrent and abusive’ it did not create a risk to mother or children and therefore was not a matter to be relied upon to restrict contact.
What this case clearly underscores is the need for careful analysis of all the factors set out in PD12J at an interim stage, followed by swift and robust findings of fact. The only way to do this is I am afraid by taking up court time. I can’t see any other way to square the circle.
Another useful example of how to apply the Court of Appeal guidance B-B, Re (Domestic Abuse: Fact-Finding) (Rev1)  EWHC 108 (Fam) (20 January 2022) – in this case the father was found to have behaved abusively.