In a bid to clarify any prior misunderstandings, the Court of Appeal has provided guidance as to when fact-finding hearings in private family law proceedings are required when allegations of domestic abuse are raised. The case of K and K  EWCA Civ 468, which was handed down on the 8th April 2022, highlights that the court is not obliged to hold a fact-finding hearing in every case where domestic abuse is alleged. The decision, which follows on from the seminal case of Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings)  EWCA Civ 448, instead makes it clear that the court ought only to embark on a fact-finding hearing if “the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare”[para 8]. Moreover, the court has also sought to emphasise in its judgment “the importance of the requirement in rule 3.3(1) for the court to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate”[para 34].
The father and mother married in 2005 and later separated in August 2017, during which time they had three children together. The father was having regular unsupervised contact with the children until disagreements occurred between the parents. This prompted the father to make an urgent C100 application which complained of parental alienation and sought to formalise weekend and holiday contact with his children. The urgent nature of the application was due to the fact that Christmas was approaching thus enabling him to successfully by-pass the MIAM. The mother subsequently filed a C1A form alleging minor allegations against the father, but which did not object to his unsupervised contact with the children. A safeguarding letter produced by CAFCASS prior to the FHDRA later raised allegations of rape and the court was invited to conduct a fact-finding hearing. Save for two issues, the judge found each of the allegations proven against the father, and the father subsequently appealed. The father submitted that the judge had not considered parental alienation and that the factual findings failed to “take into account the bigger picture.”[para 2]
Non-court dispute resolution
The court notably referred to it as “unfortunate”[para 6] that the parties did not attend a MIAM and that had they done so the “issues between the father and mother that concerned the logistics of the father’s contact might have been speedily resolved before the inevitable trauma caused to the family by the fact-finding process”[para 6]. The court went further to state that “the father ought to have been required to engage with the MIAM process”[para 35] which is a requirement pursuant to Section 10 of the Children and Families Act 2014. Furthermore, in relation to the FHDRA, the court highlighted how its “essential purpose is as an opportunity for judicially led dispute resolution” [para 37] and emphasised the importance of “proper consideration being given to the possibility of non-court dispute resolution at the FHDRA”[para 40]. The reasoning of the court reflects the importance of engaging in non-court dispute resolution and how the “trauma”[para 6] of the fact-finding process in this case may have been avoided had the parties endeavoured to reach an early settlement on the issues.
The court echoed the decision laid out in Re H-N by highlighting that the judge ordering a fact-finding hearing should identify “at an early stage the real issue in the case in particular with regard to the welfare of the child”[para 8]. The court reinforced this point by referencing FPR PD12J in its judgment which provides that “[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.”[para 8]=
Furthermore, the court helped to clarify the position by stating that the main things a court should consider when deciding whether to order a fact-finding hearing are:
“(a) 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,
(b) 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,
(c) whether fact-finding is necessary or whether other evidence suffices, and
(d) whether fact-finding is proportionate.”[para 66]
The court held that the appeal ought to be allowed and the case is to be remitted to a Circuit Judge to decide on whether a fresh fact-finding hearing is required in light of the principles laid out in Re H-N and this judgment. The court based its decision on inter alia the failure to engage in non-court dispute resolution and a lack of focus afforded to the children’s welfare when deciding both to undertake a fact-finding hearing and whilst considering the allegations.
To conclude, this guidance ought to be welcomed as an attempt to clarify the position relating to fact-finding hearings when domestic abuse is alleged. It also serves as a strong reminder that attempts to engage in non-court dispute resolution and focussing on a child’s welfare are of paramount importance in the context of private family law proceedings.
The full judgment can be found here.