May – Case Law Update 2 – guidance on approaching fact-finding hearings in private family proceedings

Each month, Justine, our Professional Support Lawyer, shares a round-up of key cases, with links to full information and an overview of learnings. Her role is dedicated to helping develop our family lawyers.

K v K [2022] EWCA Civ 468

https://www.bailii.org/ew/cases/EWCA/Civ/2022/468.html

Court of Appeal case which provides general guidance on the proper approach to fact-finding hearings in private family proceedings following Re H-N.

This was a second appeal from a decision of a district judge who had ordered a fact finding hearing in the context of the father’s application for a child arrangements order and subsequently made a number of findings against the father. This summary will focus on the guidance provided by the Court of Appeal of general application, rather than the facts of the case itself. However in summary, the parents had three children with whom the father had regular unsupervised contact. Logistical issues caused disagreements between the parties and the eldest child stopped seeing her father. The father issued an application in a C100 and the mother then filed a form C1A, making minor allegations against the father but containing no objection to the father seeing the children unsupervised. The subsequent safeguarding letter raised the alleged rape of the mother by the father as an issue and advise the court to consider a fact finding hearing. The judge at the FHDRA listed a 2 day fact finding hearing at which allegations of rape and coercive and controlling behaviour were tried. The judge found the majority of the allegations proved. The judge gave no specific reasons for his decision to order a fact finding hearing.

The Court of Appeal made the following observations:

1. In this case the father claimed an exemption to the MIAM requirement on the grounds of urgency. The Court of Appeal took the view that there was no urgency and that the MIAM exemption had been invalid. The father ought to have been required to engage with the MIAM process. Initially there was no argument in principle as to overnight contact and the case could have been resolved effectively through mediation. The court must consider non-court dispute resolution at every stage.
2. At the FHDRA there should be proper consideration to the possibility of non-court dispute resolution. In this case there was a missed opportunity at the FHDRA for the parties to resolve matters by agreement.
3. It is important that a judge considering ordering a fact-finding hearing identifies “at an early stage the real issue in the case in particular with regard to the welfare of the child” (see [8] and [139] in Re H-N). As [14] of FPR PD12J provides, “[t]he court must ascertain at the earliest opportunity … whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child”. 17(g) of FPR PD12J is to the same effect. Fact-finding is only needed if the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare.
4. The finding that the father raped the mother during the marriage was unsafe because the judge failed to look at the matter in the round and failed to consider all the available evidence. He failed to step back and consider the mother’s credibility in the round.

5. The judge ought to have considered all the allegations in the context of the contention that most fundamentally affected the question of future contact, namely whether the father was demonstrating coercive and controlling behaviour affecting the children’s welfare after the separation. In Re H-N the court identified the need to a) focus on the overarching issue of coercive and controlling behaviour when it is raised, and b) to do so only to the extent that it is relevant and necessary to determine issues as to a child’s future welfare. A fact-finding hearing hearing must take place within proceedings to protect a child from abuse or regarding their future welfare. It must not be a chance for parties to air their grievances.

The main things that the court should consider in deciding whether to order a fact-finding hearing are:

1. the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order;
2. that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child;
3. whether fact-finding is necessary or whether other evidence suffices, and
4. whether fact-finding is proportionate.

The Court of Appeal expressed concern that there appears to be some misunderstanding of the court’s role and that there is a perception that in every case in which allegations of domestic abuse are made a fact-finding hearing is necessary. This is not the case. The court’s duty is to determine only the factual matters which are likely to be relevant to deciding whether a child arrangements order should be made and in what terms.

Having found that the District Judge’s findings in relation to the most serious allegations against he father were unsafe, the fact finding judgement and the schedule to the judge’s order was set aside and the matter was remitted to a Circuit Judge for a decision to be made as to whether a fresh fact-finding would be required.