In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] FLR (forthcoming) the Court of Appeal considered whether they should recognise a Romanian appeal court's judgment as to custody of a 7-year-old child. They refused to do so. The Romanian court, they said, had not considered whether they should provide an opportunity to be heard by the court (as is required by Council Regulation (EC) No. 2201/2003, Brussels IIA Art 12(b), cited and explained below). The reasoning for the Art 23(b) outcome in the Court of Appeal raises questions as to:

what is meant by an opportunity for the child to be heard by the court;

what 'fundamental principles of procedure' (see Art 23(b)) are engaged in this process; and

how any such 'fundamental principles' are applied in English law and practice.   

 (see Guidelines for judges meeting children who are subject to family proceedings [2010] 2 FLR 1872) as distinct from the quite separate subject of children giving evidence in family proceedings - see, eg, Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485. 

A and B (Parental Alienation:  Re [2020] EHWC 3366

Janet Bazley QC appeared for The Father in this child arrangements dispute instructed by Keystone Law.

The main issue in the case was whether the father's application for a transfer of residence of two older children (14 and 11) to his care should be granted on the basis that the mother was responsible for alienating them from him. After a court-approved trial of shared care had failed, Mr Justice Keehan found that the mother was responsible for the children being split from the father and that no arrangement other than a full transfer of residence, with limited contact to the mother, would meet their welfare needs. The judge also granted the father's application for an order prohibiting the mother, during the children's minority, from removing them from his care or from England & Wales. The later judgments in the series deal with the issues which arose post-judgment, the eventual success of the reunification with the father, the granting of father's application that parental responsibility for the children be granted to his new wife, and costs issues. 

RE H-N AND OTHERS (CHILDREN) (DOMESTIC ABUSE: FINDINGS OF FACT HEARINGS) [2021] EWCA CIV 448

AA v BB [2021] EWHC 1822 (Fam), which is one of the first reported cases to consider the Court of Appeal's decision in Re H-N.  

Reader is directed to the following link for the full judgment in this case: https://www.judiciary.uk/wp-content/uploads/2021/03/H-N-and-Others-children-judgment-1.pdf

COERCIVE AND/OR CONTROLLING BEHAVIOUR

In the case of F v M [2021] EWFC 4, Mr Justice Hayden handed down a judgment which, the Court opined, 'should be essential reading for the Family judiciary'. The Court added that, in addition to the case being an illustration of what is meant by coercive and controlling behaviour (albeit towards the higher end of such behaviour), Hayden J provided a valuable exercise '... in highlighting at paragraph 60 the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. That guidance is relevant to the evaluation of evidence in the Family Court.' [30]

The following is a link to the full judgment in F v M: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/4.html.

The following is a link to an article on F v M written my colleague, Ron Edginton: https://becket-chambers.co.uk/2021/03/03/coercive-and-controlling-behaviours-how-are-they-to-be-dealt-with-in-fact-finding-hearings-after-the-recent-case-of-f-v-m/.

The Court stated that '[t]he circumstances encompassed by the definition of 'domestic abuse' in PD12J 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 that might be written down and included in a schedule in court proceedings ... It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim.' [31]

'PATTERNS' OF BEHAVIOUR & THE APPROACH TO BE TAKEN BY THE COURT

Having considered the damage coercive and/or controlling behaviour can cause to children, the Court moved to consider the approach to be taken by courts where a 'pattern' of 'coercive' and/or 'controlling' behaviour has been raised. Importantly the Court clarified that, while its judgment may be focused on controlling and coercive behaviour, the definition of domestic abuse refers to patterns of behaviour which includes all forms of abuse including physical and sexual violence and, as such, the Court's observations apply equally to all forms of abuse.

The Court determined that there were several important issues which arise re the proper approach of the court to such cases, namely:

1. Whether there should be a fact-finding hearing;
2. The challenges presented by Scott Schedules as a means of pleading a case;
3. If a fact-finding hearing is necessary and proportionate, how should an allegation of domestic abuse be approached?;
4. The relevance of criminal law concepts.

1. The need for and the scope of any fact-finding hearing

The Court highlighted that '[i]t is important for the court to have regard to the need for procedural proportionality at all times, both before and during any fact-finding process. A key word in PD12J paragraphs 16 and 17 is 'necessary'. It is a word which also sits at the core of the President's Guidance 'The Road Ahead' (June 2020) ... in particular: '43. 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.' [36]

The Court stated that: [37] '[t]he court will carefully consider the totality of PD12J, but to summarise, the proper approach to deciding if a fact-finding hearing is necessary is, we suggest, as follows:

i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).

ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.

iii) Careful consideration must be given to PD12J.17 as to whether it is 'necessary' to have a finding of fact 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.

iv) Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is 'necessary and proportionate'. The court and the parties should have in mind as part of its analysis both the overriding objective and the President's Guidance as set out in 'The Road Ahead'.'

1. Scott Schedules

The Court heard submissions from the parties as to the usefulness of Scott Schedules and re courts focusing on a list of specific incidents each tied by time and date (rather than on whether there had been a pattern of behaviour). The parties had also been required to limit the number of allegations to be tried.

The Court concluded that:

'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. This is an important point. Everyone agrees.' [46]

'Quite how a move away from the use of Scott Schedules is to be achieved, and what form any replacement 'pleading' might take, does, however, raise difficult questions ... 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'. [48]

'The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties ... It will be for others ... to develop these suggestions into new guidance or rule changes.' [49]

1. Approach to Controlling and Coercive Behaviour

The Court noted that, until such time as there is new guidance or a change to the rules, cases of domestic abuse will continue to come before the courts and with an increased focus on controlling and coercive behaviour.

The Court determined that, where a party properly raises the issue of whether there has been a pattern of coercive and/or controlling behaviour, that '[i]t is the responsibility of the individual judge or bench of magistrates in each case to set a proportionate timetable and to maintain control of the court process where it has been determined that a fact-finding hearing is necessary. It is, however, our expectation that, 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).' [56]

To assist, the Court offered the following pointers [58]:

'a) PD12J ... is focussed upon 'domestic violence and harm' in the context of 'child arrangements and contact orders'; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;

b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is 'necessary' in order to:

i) Provide a factual basis for any welfare report or other assessment;

ii) Provide a basis for an accurate assessment of risk;

iii) Consider any final welfare-based order(s) in relation to child arrangements; or

iv) Consider the need for a domestic abuse-related activity.

c) Where a fact-finding hearing is 'necessary', only those allegations which are 'necessary' to support the above processes should be listed for determination;

d) 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.'

The Court stated that '[w]here 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 PD12J, paragraph 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).' [59]

1. The relevance of criminal law concepts

The Court confirmed that the 'authoritative statement of the law in this regard' is found in the Court of Appeal judgments of McFarlane and Hickinbottom LJJ in Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198; [2018] 1 WLR 1821, where the court held that, as a matter of principle, it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.

AA v BB [2021] EWHC 1822 (Fam)

On 2 July 2021 The Hon Mrs Justice Judd handed down judgment in the appeal of an order made in private law Children Act 1989 proceedings. This is one of the first reported cases to consider the Court of Appeal's decision in Re H-N.

The appeal was against a case management decision to exclude evidence from a fact-finding hearing in which there were cross-allegations of domestic abuse. Each party was directed to file a schedule limited to 5 allegations.

The start of the fact-finding hearing was delayed and the matter called on at 2pm. Father's counsel raised preliminary points including that mother's statement went beyond 5 allegations, that it added more detail and examples of the father's alleged abuse towards her and the children, and that it exhibited a number of documents (including letters from professionals treating the oldest child and which set out allegations the child had made against the father). The mother also sought to rely on statements from the maternal grandmother and the nanny.

Due to time constraints, the fact-finding hearing was adjourned and the judge limited himself to case managements issues. The judge, in large part, acceded to father's application and directed that mother should file a new statement. The judge allowed the grandmother's statement (but stated the contents went far beyond the allegations in the Scott Schedule) and the nanny's statement, but excluded documents include those from the professionals treating the oldest child.

In her appeal, the mother relied on the dicta of the Court of Appeal in Re H-N and of Hayden J in F v M regarding the limitations of Scott Schedules and the fact that the court focused on particular allegations rather than looking at patterns of overall behaviour.

In allowing the appeal, Judd J stated that:

'The allegations beyond those in the Scott Schedule were not either inadmissible or irrelevant; quite the opposite'. [37].

'There will be occasions when a judge refuses to admit relevant evidence produced at the last minute before a hearing, when, for example it is not highly significant in relation to the other evidence and/or it cannot be adduced fairly without an adjournment of the trial which will itself cause harm and delay for the child'. [38]

'In this case, however, not only were the allegations highly significant but the hearing had to be adjourned in any event. The fact finding hearing was relisted ... meaning there was time for the nature of scope of this to be considered at a further case management hearing ...' [39]

Judd J made directions and the matter was listed for a pre-trial review.

The following is the link to the full judgment in this case: https://www.bailii.org/ew/cases/EWHC/Fam/2021/1822.html

V (A Child) [2015] EWCA Civ 274

Appeal by a father following a fact-finding hearing in private law children proceedings.

This was an appeal by a father following a fact-finding hearing in private law children proceedings. The substance of the appeal was a complaint that, in giving his ex tempore judgment, the judge had simply recited the evidence and announced his conclusions with an absence of reasoning. When the papers first came before Black LJ, she invited the appellant to return the matter to HHJ Wulwik in order to ask him to provide his reasons. This having been done, and the reasons provided amounting to less than a side of A4, Black LJ was satisfied that the reasons were still sufficiently lacking that permission to appeal ought to be granted.  

Judgment in intractable contact / parental alienation case, giving guidance on case management in such matters

06/12/2017 10:14Re E (A Child) [2011] EWHC 3521 (Fam) Judgment in intractable contact / parental alienation case, giving guidance on case management in such matters By the time of the final hearing the child was 8 ½ years old and had not seen the father for 3 ½ years. 

Re C (Internal Relocation) [2015] EWCA Civ 1305

29/12/2015 21:00 In the case of child relocation specialist Anna Worwood of Penningtons Manches LLP, acted for the appellant's father (instructing Charles Hale QC). The father's appeal generated a necessary consideration of the proper principles to be applied in cases involving...

Re F [A] Child International Relocation Cases

14/10/2015 00:43 To consider The law to be applied in an international child relocation case was set out in K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793 A father's appeal against an order giving the mother leave to remove their 12-year-old daughter to Germany was allowed...

An appeal in a long-running contact case against a no direct contact order. Guidance is given on the applicability of Re B (A Child) [2013] to private law cases and the correct approach to implacable hostility to contact cases

02/02/2014 17:39 A (A Child) [2013] EWCA Civ 1104 Appeal in a long-running contact case against a no direct contact order. Guidance is given on applicability of Re B (A Child) [2013] to private law cases and the correct approach to implacable hostility to contact cases 

CHILDREN GIVING EVIDENCE IN FAMILY PROCEEDINGS. 

W (Children) [2010] 

Appeal to the Supreme Court by father in care proceedings relating to five children. At issue were the principles guiding the exercise of the court's discretion in deciding whether to order a child to attend to give evidence in family proceedings. Appeal allowed.

REASONS FOR THE JUDGMENT

• The court agreed with counsel for the local authority that there were very real risks to the welfare of children which the court must take into account in any reformulation of the approach [17 to 21]. However the current law, which erects a presumption against a child giving live evidence in family proceedings, cannot be reconciled with the approach of the European Court of Human Rights, which aims to strike a fair balance between competing Convention rights. In care proceedings there must be a balance struck between the article 6 requirement of fairness, which normally entails the opportunity to challenge evidence, and the article 8 right to respect for private and family life of all the people directly and indirectly involved. No one right should have precedence over the other. Striking the balance may well mean that a child should not be called to give evidence in a great majority of cases, but this is a result and not a presumption nor even a starting point [22, 23].
• Accordingly, when considering whether a particular child should be called as a witness in family proceedings, the court must weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child [24]. The court sets out a number of factors that a family court should consider when conducting this balancing exercise. An unwilling child should rarely, if ever, be obliged to give evidence. The risk of harm to the child if he or she is called to give evidence remains an ever-present factor to which the court must give great weight. The risk, and therefore the weight, will vary from case to case, but it must always be taken into account [25, 26]. At both stages of the test the court must also factor in any steps which can be taken to improve the quality of the child's evidence, and at the same time decrease the risk of harm to the child [27, 28].
• The essential test is whether justice can be done to all the parties without further questioning of the child. The relevant factors are simply an amplification of the existing approach. What the court has done however is remove the presumption or starting point; that a child is rarely called to give evidence will now be a consequence of conducting a balancing exercise and not the threshold test [30].
• In this case the trial judge had approached her decision from that starting point. The Supreme Court could not be confident that the judge would have reached the same result had she approached the issue without this starting point, although she might well have done so. Nor did the court consider it appropriate to exercise its own discretion, given that all of the relevant material was not before the court. The question is remitted to the trial judge to decide at the fact finding hearing scheduled for next week. Taking account of the detriment which delay would undoubtedly cause to all of the children concerned, including the unborn baby, there should be no question of adjourning that hearing [31 to 35].