Emma Cross Barrister

In the year since Re H-N (seminal case regarding PD12J, domestic abuse and fact-finding hearings), there have been a series of decisions in the higher courts which have helped to shape and define the original decision. In more recent times, the Court of Appeal provided general guidance on the approach to fact-finding hearings in private family law proceedings in K v K [2022] EWCA Civ 468 (K v K).

On 5 May, Sir Andrew McFarlane, President of the Family Division, approved and published ‘Fact-finding hearings and domestic abuse in Private Law children proceedings – Guidance for Judges and Magistrates’ (the guidance) which was produced by a working group spearheaded by Lady Justice Macur. This article is split into two parts to provide an overview of K v K and the guidance.

K v K

K v K concerned two parents who had married in 2005 and separated in August 2007. They had three children and, for a time, the father had regular unsupervised contact before disagreements arose and the contact broke down. The father applied for a child arrangements order. The mother then made a number of allegations of domestic abuse against the father which culminated in a two-day fact-finding hearing before a District Judge. It should be noted that the first instance decision pre-dated Re H-N but the court makes it clear at the outset a) its intention to provide general guidance on the proper approach to fact-finding hearings and b) its endorsement of Re H-N.

The appeal came before Sir Geoffrey Vos, Master of the Rolls, Sir Andrew McFarlane, the President of the Family Division and Lady Justice King. The judgment reminds us of the importance of the court, when considering ordering a fact-finding hearing, to 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 (FPR PD12J at [14]). In addition, any 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. This was particularly relevant in K because the father was previously having unsupervised contact with the children.

The court allowed the appeal, set aside the fact-finding hearing judgment and completed schedule of allegations and the case was sent back to a Circuit Judge for a decision to be made as to whether a fresh fact-finding hearing is required in light of Re H-N and the Court of Appeal’s judgment.  The court considered that the first instance judge had prematurely decided a fact-finding hearing was necessary. The judge in this case did not at any stage, either in the FHDRA or fact-finding hearing, identify the issues that arose as to the future arrangements for these three children. The judge concluded that a fact-finding hearing was required before the mother had identified the allegations she wished to pursue, and before disclosure of relevant material had been obtained.

The Court of Appeal raised specific concerns regarding the judge not considering evidence and the mother’s credibility in the round including focussing on whether the mother had had a conversation complaining about the father’s conduct when she had made an untrue assertion that she had reported financially controlling behaviour to the family doctor. The court determined that the finding of rape was unsafe. In addition, the court was further concerned that the judge had also made a finding of controlling behaviour mainly based on WhatsApp messages which took place on a single day.

The court also took the opportunity to clarify some perceived misunderstandings of Re H-N. Firstly, at paragraph 67, the court clarified the role of the court. It is not a requirement that in every case, in which allegations of domestic abuse are made, that the court must undertake a fact-finding, involving a detailed analysis of each specific allegation made. Rather, the Court of Appeal reiterated that “the duty on the court is limited to determining only those factual matters which are likely to be relevant to deciding whether to make a child arrangements order and, if so, in what terms.”

Secondly, the court clarified a potential inadvertent misunderstanding regarding coercive and controlling abusive behaviour. Paragraph 53 of Re H-N states:

“Where however an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.”

The Court of Appeal in K clarified at paragraph 70:

“That sentence [paragraph 53 Re H-N] is a requirement to consider an overarching issue of coercive or controlling behaviour, where to do so is necessary for the determination of a dispute relating to a child’s welfare. It is not a requirement for the court to determine every single subsidiary factual allegation that may also be raised. The court only decides individual factual allegations where it is strictly necessary to do so in addition to determining the wider issue of coercive or controlling behaviour when that itself is necessary.

Therefore, it remains the case, as per Re H-N, of critical importance to identify at an early stage the real issue in the case, in particular with regard to the welfare of the child before a court is able to assess if, a fact-finding hearing is necessary and if so, what form it should take. Where coercive or controlling behaviour is alleged in this context, it is likely to be the primary matter requiring determination, provided that it is likely to be relevant to a live issue relating to a child’s welfare. Re H-N at [56] made clear that the focus on coercive or controlling behaviour as the primary issue should make it generally unnecessary to determine other subsidiary date-specific factual allegations.

The Court of Appeal’s views of the Cafcass analysis are also of note. We should all heed the court’s warning at paragraph 85:

“There is, in our view, a real danger in reducing bespoke, detailed and subtle findings made by a judge to one or two word headline labels, in place of the original detail. The case analysis uses the labels of rape, bullying, manipulation and physical abuse, each of which emits a neon light in an erroneous and unjustified manner.”

Depending on the decision of the Circuit Judge to whom K v K has been remitted, the reality is likely to be that there will need to be a new case analysis but practitioners and those writing welfare reports would be well advised to carefully check and make sure that a) the court’s actual findings are accurately reflected and b) that they are not summarised in a way that changes the context in which the findings were made. The way in which findings are considered in any welfare report could, as it did for the father in K v K, lead to recommendations which are more limited in nature than may actually be warranted in the case.

As an aside, K v K also addresses the importance of MIAMs as, in this case, neither parent had taken up this opportunity, as no substantive allegations had been made against the father at this early stage. The Court of Appeal recognised the inevitable trauma and delay caused by the fact-finding hearing. Practitioners should make sure to double check there is strict compliance with the MIAM procedural requirements as this is now likely to come under very close scrutiny by the court, especially in the very early stages of a case. The court encouraged the parties in the case to consider mediation or other consensual resolution for the benefit of the children and highlighted the need for alternative dispute resolution to be considered at the FHDRA.

Fact-Finding hearings and domestic abuse in Private Law children proceedings – Guidance for Judges and Magistrates

This article summarises some of the key points arising from the guidance published on 5 May. In light of the concerns raised in K v K, it is not surprising that much of the guidance re-emphasises the points made in Re H-N and K v K as set out above including a more detailed analysis of whether a MIAM has taken place and if not, why not.

The guidance encourages family courts to make every hearing count and to interrogate the reasoning given by advocates for a fact-finding hearing. The following practical pointers may assist to this end:

  1. Attend the FHDRA fully prepared to make as detailed submissions as possible about the need (or not) for a fact-finding hearing and also to justify any proposed directions for third party disclosure and witness statements. The court guidance stipulates that no case should be timetabled to a fact-finding hearing without a properly completed witness template. In addition, be wary of new evidence being produced/disclosed later without good reason as the court may not admit it.
  • Ensure that you obtain the essential information in respect of any allegation at an early stage. What, when, where? What was the effect on the child and the parent? Were there witnesses? What other evidence might be available? Is the behaviour complained of because of the breakdown of the relationship rather than a/the cause of the breakdown?
  • The guidance invites the court to consider what exactly is alleged in terms of domestic abuse and by whom. The definitions at PD12J, paragraphs [2A], [3] and [14] are specifically referenced. Make sure you factor this into any submissions.
  • Be mindful of how the court is using any schedule or table of allegations. It should not be the sole focus of a hearing but can be used by the court as a structure to assist in analysing specific allegations.
  • The guidance invites the court to question if one parent is denying contact per se or seeking to add conditions for child arrangements. Come prepared to justify or dispute any concerns about child arrangements and be aware that the court will look at whether, taking the allegations at their highest, they go to safeguarding in general or to particular circumstances that could be mitigated by supervision of contact or some other measures. If this is the case, then the court may question why it is said that a fact-finding hearing is required.
  • Following on from the above point, carefully consider whether there are any admissions and whether you need a fact-finding hearing in light of those admissions. The guidance suggests the court should consider if the form and/or response of any admissions suggest a possible way forward to the satisfaction of the court that will permit safe continuation of relationships with the child and avoid conflict with other adults.
  • C1As could be used to set out the precise allegations sought by a client rather than, as sometimes happens, a general summary which then evolves and sometimes even changes by the time of a narrative statement.
  • A supporting position statement could also be of assistance before the FHDRA. At the very least, taking detailed instructions on a client’s position and forwarding this to any instructed counsel in advance of the FHDRA date will enable a case summary or skeleton argument to be prepared and well-reasoned submissions to be made to the court. This will help to prevent delay and possibly the need to seek a further hearing before a decision can be made about whether or not a fact-finding hearing is necessary.
  • Always question ‘is an allegation relevant to and necessary for a decision regarding child arrangements?’. If the answer is ‘no’ then clients should be advised that this is not something the court will progress to a fact-finding hearing.
  1. If the court decides that a fact-finding hearing is not necessary, make sure reasons are provided and fairly and accurately recorded on the face of the order (the guidance provides for this). The court must, at all stages in the proceedings, consider whether domestic abuse is raised as an issue (PD12J at [5]). This therefore leaves the door open to invite the court to re-visit an earlier decision not to have a fact-finding hearing. However, this is not a given, and the court will need to be addressed on what is said to have changed to undermine the original analysis so come prepared to address this.

Emma Cross

Magdalen Chambers

30 May 2022

Read more about Magdalen Chambers here.