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September 28, 2021

Private Law Children Update

Domestic abuse and the family court is something of a hot topic, both legally and politically. Previous bulletins have been concerned with the Domestic Abuse Act 2021 and the highly anticipated judgment of Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448. More recently, two cases concerned successful appeals from fact finding hearings following on from Re H-N & Ors:

  • AA v BB [2021] EWHC 1822 (Fam) Judd J: Mother had filed evidence beyond that provided for in the orders and beyond the scope of the five allegations allowed by the court. Father applied at court to exclude the evidence which the Recorder acquiesced to in the most part. Judd J said this: The allegations beyond those in the Scott Schedule were not either inadmissible or irrelevant; quite the opposite. The fact that the father was alleged to have hit the older child not once but several times was plainly an allegation of a pattern of behaviour which is highly relevant to an application for contact. So too were allegations he had forced the mother to have sex on several rather than one occasion, that as well as being physically violent to him the father treated the older child in a humiliating manner, and that he was a bully. These matters are also relevant to the father’s case, in particular that the mother was the one who was violent, not him, and that she was alienating the children from him. These allegations (some of which had been set out in the mother’s initial C1A) demonstrated that strict adherence to single incidents in the Scott Schedule would have to be reconsidered. She went on to clarify that there will be occasions where for reasons of fairness or delay evidence might not be admitted. Directions were given for further evidence from mother and a PTR to consider what factual issues needed to be resolved. Of note, a direction was not given for Scott Schedules to be prepared prior to the PTR .The Road Ahead’, guidance issued in 2020 was referred to: 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 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’. … Parties will not be allowed to litigate every issue…’.
  • AB v CD [2021] EWHC 819 Roberts J: the judge allowed an appeal following a four-day fact finding hearing. There was no error of law alleged, but a failure to evaluate and assess the evidence. It was held that there was no Lucas direction and an absence of analysis in the judgment. It was a mistake to have included within the approved order a recital about the “strength and power” of allegations which the judge at first instance had claimed to have put to one side and upon which she was not making findings. Where one party accuses the other of fabrication of allegations the tribunal must consider the allegation and provide reasons as to why the allegation is rejected.

H-M (Children) [2021] EWCA Civ 748 was mother’s second appeal relating to the fact finding. Whilst a public law case, it offers some interesting points regarding the interface between decisions of the family and criminal courts and when they are incongruent. Jackson J refused mother’s application to re-open the fact finding. The judgment is useful as it sets out the differing approach to re-opening vs appealing findings. There is useful guidance on the correct approach when the family court and criminal court reach differing outcomes.

Practitioners might like to browse D v E (termination of parental responsibility) [2021] EWFC 37 regarding a successful application by mother to terminate PR pursuant to s4(2A) CA 1989. F had a significant offending history and had been investigated and charged for sexual offences against a child, for which he was convicted. It was mother who applied a) for CAO terminating all contact (there was none at the time of the application and the child had no recollection of her father), b) change of name, c) termination of PR. A guardian was involved and supported the application and further applied for a s91(14) order. The case law on all points is set out but, perhaps most interestingly, in respect of the s91(14) orders where it was made clear that whilst repeated applications is one criteria it was said: Beyond this, in a suitable case and on clear evidence, a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications. However, before making an order in such circumstances the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family; and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

AA v BB [2021] EWFC 55: Temporary leave to remove to a non-convention country. Mother had lived in England since late 2018, although the parties remained married. Mother took the children to Dubai in October 2018 but, thereafter, covid-19 interrupted any further visits. In May 2020 M said that the marriage was at an end, that she wanted to remain in England and had renounced Islam. Father wished to have contact, particularly in Dubai and Jordan. He was not an impressive witness but was found to be selfish and insensitive. Coercive control was not established. Mother was found to be genuine in her fears of abduction although the risk was thought to be low if F had unsupervised contact in this jurisdiction. The court was required to consider: i) The magnitude of the risk of breach of the order if permission is given; ii) The magnitude of the consequence of such breach; iii) The level of security that may be achieved by building in all available safeguards. Given mother’s locus in Jordan and Dubai and her apostasy, the risk could not be mitigated by the protective measures at the disposal of the court. Contact between father and the children was ordered to take place in England and Wales.

Caroline Middleton