Case summary

This was an appeal before the Honourable Mr Justice Cobb (“the appeal judge”) on 12 July 2024, the judgment having been handed down on 31 July 2024. The mother challenged a decision not to hold a fact-finding hearing within private law proceedings where cross-allegations of domestic abuse had been raised and/or make any adjudication upon a number of allegations. There is one child “M” who is 8 years old.

The hearing which is the subject of this appeal was in September 2023, listed as a combined fact-finding hearing and final hearing. At that hearing, the Judge decided as a preliminary issue that a fact-finding was not necessary to determine the welfare issues having undertaken an analysis within the context of PD12J and K v K [2022] EWCA Civ 468 (‘K v K’), also referencing the President’s guidance dated 5 May 2022. The Judge also made a joint lives with order, including M to have a gradual progression to spending six nights a fortnight with her father in term-time and to spend half the holidays with each parent.

Permission to appeal was granted on Grounds 2-5. Ground 5 subsequently fell away as there was no longer a place at the school which the mother wished M to attend.

  • Ground 2: “The judgment omitted marital and significant aspects of evidence which would have supported findings of domestic abuse and coercive and controlling behaviour” (and went on to list examples)
  • Ground 3: “It was a legal error for the court to determine that the mother’s case as to domestic abuse “taken at its highest” would have no effect on the welfare decision because the father was already having overnight contact”
  • Ground 4: “In determining child arrangements, the court did not place enough weight on the child’s sex in light of the father’s comment that it “would depend on the circumstances” if she came to him to say that her future husband would not register her marriage or expected a certain level of cleanliness in the home. The father’s prejudicial views are harmful for the child.”

The appeal judge was satisfied that the judge cited the relevant extracts from PD12J, section 1-4 Domestic Abuse Act 2021 and drew on the President’s guidance and relevant case law, namely, Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, Re B-B [2022] EWHC 108 (Fam) and K v K.

In dismissing the appeal, his conclusions included:

“The Judge rightly did not dismiss or diminish the significance of domestic abuse and its effect on its victims, but emphasised that he had to have regard to its relevance and impact on the particular facts of this case” [53].

“The Judge was perfectly entitled to bring into account, and indeed rely upon, the fact that the mother had agreed to overnight contacts some eighteen months before the hearing against the backdrop of the allegations she had made.  She had indeed later suggested an increase in the number of nights.  The Judge rightly acknowledged that domestic abuse can still play out in the court setting, and can directly affect the victims in the way in which they present their cases and potentially even agree to outcomes with which they are not instinctively content.  The Judge, on these facts, satisfied himself that this was not such a case” [54].

“The Judge set out detailed reasons for concluding that a ‘joint lives with’ order was appropriate in this case; his reasoning is, indeed, entirely in line with the reasoning contained in the judgment of Poole J in the recent case of AZ v BX [2024] EWHC 1528 (Fam)” [55].

 

The Law

This case provides a useful reminder to practitioners of the principles to consider, particularly in cases where there are allegations of domestic abuse and whether there should be a fact-finding hearing to determine those issues. The appeal judge helpfully provides principles from the case law at [47] and confirms the judge was faithful to the following principles:

  1. “Not every case requires a fact-finding hearing even where domestic abuse is alleged (Re H-N at [8]);
  2. It is important for judges to hold firm to the notion that “[e]very fact-finding hearing must produce something of importance for the welfare decision” (Re H-D-H at [21]);
  • There is a “need for advocates to focus on those issues which it is necessary to determine to dispose of the case, and for oral evidence and/or oral submissions to be cut down only to that which is necessary for the court to hear” (Re B-B at [6](iv));
  1. “Decisions about the scope of fact-finding are core case management decisions with particular consequences for the length and cost of proceedings, the impact of the litigation on parties and others, and the allocation of court time” (Re H-D-H [2021] EWCA Civ 1192 at [3]);
  2. The function of the family court judge in resolving issues of fact is different from that of the criminal court judge: see Re R[2018] EWCA Civ 198 at [62] and Re H-N at [66]-[74]. The Judge in this case was right not to be distracted by the submission on behalf of the mother that any decision about whether to hold a fact-finding hearing should await a charging decision from the CPS (see the Judge’s comment which I have reproduced at §13(ix) above).”

Case management

Notably, there was significant case management prior to the hearing in September 2023, the original application brought by the father in December 2020:

  • FHDRA on 29 April 2021 – DDJ Butler determined that a fact-finding was necessary
  • 15 July 2021 – Recorder Glancy KC confirmed this decision
  • 7 March 2022 – Fact-finding could not proceed as documents had not been filed as ordered. Notwithstanding this, DDJ Morris held that the application did not warrant a fact-find.
  • DRA on 23 May 2022 – no variation to the directions regarding the nature of the final hearing.
  • Final hearing on 3 November 2022 – abandoned due to counsel illness. DJ Cassidy directed “this matter ought to be resolved by way of combined fact-finding and final hearing” (DJ Cassidy confirmed this at another hearing on 5 January 2023).

As Mr Justice Cobb rightly acknowledged, where there are disputed allegations of domestic abuse, they are particularly difficult at the case management stage as these decisions will have significant implications for the future conduct of the hearing [57]. He also outlines “judicial continuity is key in domestic abuse cases; judges should always consider retaining a case listed before them which contains allegations of domestic abuse” [57]. In this case, we saw a multitude of hearings, a lack of judicial continuity, bad luck as a result of counsel illness and non-compliance with court orders all which contributed to significant delay.

The approach to be taken where appropriate is as follows:

“Judges in the Family Court when presented with a private law case involving allegations of domestic abuse where the issue of fact-finding arises, should press the parties or their advocates, as both DDJ Morris and this Judge properly did, by asking them directly at a case management, or later: “why do I need to determine this issue / these issues in this particular case?”; “what difference would it make to the welfare decision/outcome in this case in respect of this child even if I were to find the allegation proved?”.  It is important to maintain focus on the individual circumstances of the particular case (Re H-D-H at [21]-[23]).  In some cases, like this one, the decision not to hold a fact-finding hearing will leave unresolved some adult disputes between the parties, i.e., about their behaviour towards each other.  So be it.  If those issues are not relevant to the determination of the application, then court time should not be dedicated to their resolution” [59].

 

Tara Dunne

Pupil Barrister at Trinity Chambers

30 August 2024