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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K, Re [2022] EWCA Civ 468 (08 April 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/468.html Cite as: [2022] EWCA Civ 468, [2022] 2 FLR 1064, [2022] 1 WLR 3713, [2022] WLR(D) 175, [2022] 2 FCR 256, [2023] 1 All ER 348, [2022] WLR 3713 |
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CIVIL
DIVISION)
ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH
HH JUDGE MELLANBY
ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH
DISTRICT JUDGE CAPON
London WC2A 2LL |
||
B e f o r e :
SIR ANDREW McFARLANE, PRESIDENT OF THE FAMILY DIVISION
and
LADY JUSTICE KING
____________________
K | Applicant/Appellant/Father | |
and | ||
K | Respondent/Mother |
____________________
Jessica Lee and Lucy Maxwell appeared for the respondent mother
Hearing date: 2 March 2022
____________________
Crown Copyright ©
Sir Geoffrey Vos, Master of the Rolls, giving the judgment of the court:
Introduction and summary of conclusions
Further factual context
The FHDRA on 26 February 2020
1. It was unfortunate that the parties in this case did not take advantage of the MIAM
3.3 (1) The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.
(2) In considering whether non-court dispute resolution is appropriate in proceedings which were commenced by a relevant family application, the court must take into account –
(a) whether a MIAM took place;
(b) whether a valid MIAM exemption was claimed or mediator's exemption was confirmed; and
(c) whether the parties attempted mediation or another form of non-court dispute resolution and the outcome of that process.
3.4 (1) If the court considers that non-court dispute resolution is appropriate, it may direct that the proceedings, or a hearing in the proceedings, be adjourned for such specified period as it considers appropriate –
(a) to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution; and
(b) where the parties agree, to enable non-court dispute resolution to take place. …
3.7 An application [in private law children proceedings] must contain, or be accompanied by, a form containing, either –
(a) a confirmation from an authorised family mediator that the prospective applicant has attended a MIAM;
(b) a claim by the prospective applicant that one of the MIAM exemptions applies; or
(c) a confirmation from an authorised family mediator that a mediator's exemption applies.
(c) the application must be made urgently because –
(i) there is risk to the life, liberty or physical safety of the prospective applicant or his or her family or his or her home; or
(ii) any delay caused by attending a MIAM would cause:
(aa) a risk of harm to a child;
(ab) a risk of unlawful removal of a child from the United Kingdom, or a risk of unlawful retention of a child who is currently outside England and Wales;
(ac) a significant risk of a miscarriage of justice;
(ad) unreasonable hardship to the prospective applicant; or
(ae) irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence); or
(iii) there is a significant risk that in the period necessary to schedule and attend a MIAM, proceedings relating to the dispute will be brought in another state in which a valid claim to jurisdiction may exist, such that a court in that other state would be seised of the dispute before a court in England and Wales.
2. Non-Court Dispute Resolution should be considered at the FHDRA
The FHDRA provides an opportunity for the parties to be helped to an understanding of the issues which divide them, and to reach agreement. If agreement is reached – (1) The Court will be able to make an order (which in many cases will be a final order) reflecting that agreement (2) The Court will assist the parties (so far as it is able) in putting into effect the agreement/order in a co-operative way.
At the FHDRA the judge, working with the Cafcass Officer, or WFPO, will seek to assist the parties in conciliation and in resolution of all or any of the issues between them. Any remaining issues will be identified, the Cafcass Officer or WFPO will advise the court of any recommended means of resolving such issues, and directions will be given for the future resolution of such issues. At all times the decisions of the Court and the work of the Cafcass Officer or WFPO will take account of any risk or safeguarding issues that have been identified.
3. The judge considering a fact-finding hearing must first identify the child welfare issue to which the resolution of the dispute will be relevant
8. Not every case requires a fact-finding hearing even where domestic abuse is alleged. As we emphasise later, it is 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.
139. Domestic abuse is often rightly described as pernicious. In recent years, the greatly improved understanding both of the various forms of abuse, and also of the devastating impact it has upon the victims and any children of the family, described in the main section of this judgment, have been most significant and positive developments. The modern approach and understanding is reflected in the 'General principles' section of PD12J(4). As discussed at paragraphs 36–41 above that does not, however, mean that in every case where there is an allegation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing, so much is clear from the detailed guidance set out in paragraphs 16–20 of PD12J and, in particular, at paragraph 17:
"(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court;
(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case."
37. [suggesting the correct approach 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 in "the Road Ahead".
4. The finding of rape is unsafe
i) the material evidence relied solely on the conflicting accounts given by each of the two parties;
ii) there were significant inconsistencies between the mother's account to the police and her witness statement, particularly relating to identifying the year(s) during which the alleged behaviour occurred;
iii) the mother's C1A did not contain any allegation of domestic abuse and did not make any reference to sexual matters;
iv) oral and written evidence from the GP that the mother had never reported any such matter to her;
v) other general inconsistencies in the mother's account.
If I find that [the mother] had a conversation with [the father] about how unhappy she was about him initiating sex when she was asleep and that she did not want that to happen and he was to make sure that she was fully awake and that she found it uncomfortable and distressing but that it happened on occasions after that, then the allegation will effectively be made out.
Having listened carefully to both parties give their evidence, I prefer the evidence of [the mother] in this regard. In my judgment, her evidence of how the sex was initiated and that detail of what was said to her at the time was compelling evidence. Her evidence is that she asked him not to do it. Again, in my judgment, her account of the conversations that she had with him and her response to what he said to her was credible and I regarded her as an accurate witness in that regard.
70. … I would … announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in section 1 of the [CA 1989] is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.
71. As to the seriousness of the consequences, they are serious either way. …
72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability.
5 & 6. Coercive and controlling behaviour
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.
7. The consequences of our determinations
Last word
[F]indings were made against [the father] in respect of allegations of:
1. Rape – proven on balance of probabilities
2. Verbal Abuse/Bullying – proven
3. Control – proven
4. Anger/manipulation towards the children – proven on balance of probabilities
5. Physical abuse towards the children – proven.
Given the findings made, [B, C and A] have suffered harm and are at risk of suffering harm due to witnessing domestic abuse against their mother. [the father's] behaviour as described by [the mother] would have been very frightening for the children …
B has suffered physical harm although [the father] does not accept that this was abuse.
i) The judge did not make any finding that any of the children had suffered harm.
ii) There were no findings that the children witnessed domestic abuse against their mother.
iii) C was not mentioned in any of the findings.
iv) Insofar as the mother was found to have been the victim of abusive behaviour, this can only have related to the findings in relation to allegations 1-3, the June 2019 WhatsApp and the more general finding of controlling behaviour.
v) In terms of the children 'witnessing domestic abuse', this could only relate to the findings of control. The judge's findings concerned the father taking charge of all aspects of married life and the mother feeling disempowered as a result. We do not underestimate the impact of such a finding, but the judge's analysis did not include any description of its impact on the children or that they would have found this behaviour 'very frightening'.
vi) B was not found to have been physically abused and, in not accepting that it was abuse, the father was doing no more than relying on the judge's finding to that effect.