R (Children)

On the evening of 2 June 2016 the mother of two young children died in the kitchen of their family home as a result of a single fatal knife wound to her neck; the wound had been inflicted by their father. As a result of that tragic event the children, A, a girl aged 10 and B, a boy aged 7, were removed to foster care and their father was arrested and charged with their mother’s murder. In due course, after the father had been acquitted of all criminal charges, Mrs Justice Theis conducted a fact finding hearing within child care proceedings in the Family Court which concluded with a finding that the father had “used unreasonable force and unlawfully killed the mother”. It is against that finding that the father now appeals, permission to appeal having been granted by me on 19 October.

Although Miss June Venters QC, the father’s advocate before Theis J and before this court, has raised a number of grounds of appeal, both in her pleaded case and with additional grounds raised for the first time orally in submissions, the court has taken the unusual step of limiting submissions to two central matters in order to determine whether the appeal must succeed in any event on either or both of these points, irrespective of the additional matters that are now relied upon.

In short terms, the two issues which are the focus of this judgment are:

In view of the narrow focus of this judgment, it is not necessary to rehearse the factual background other than in outline terms.

The mother’s death occurred in the context of an acrimonious relationship between the parents following the father’s discovery, in December 2015, that the mother was having an affair. The parties had separated and at the time of the killing the mother was living away from the family home where the two children still lived with their father. The mother returned to the house regularly to have contact with the children; the evening of 2 June 2016 was one such occasion. During the course of an argument between the couple in the kitchen of the property, the mother picked up a kitchen knife and slashed out with it so as to cause significant injury to the child A’s arm and to the back of the father’s head.

The father was able to usher A out of the immediate vicinity. He then struggled with the mother and at some stage gained possession of the knife. It was at that stage that the mother sustained the fatal wound to her neck. The knife caused a single but very substantial wound which severed most of the internal structures of the centre and right side of the neck including a complete transection of the right common carotid artery and internal jugular vein. As a result the mother experienced an immediate very substantial loss of blood causing her to collapse and die shortly thereafter. Cause of death was exsanguination due to the severity of the neck wound.

The father’s account, both during his criminal trial and before Theis J, was that he had done no more than was reasonable in the circumstances to protect himself and the children.

Although it is not my intention to descend to detail it is necessary, for the purposes of understanding an aspect of the father’s Article 6 appeal, to set out the terms of an account presented by his criminal defence solicitors to the experts in the criminal trial in a letter dated 2 December 2016 which reads as follows:

“He was holding the knife in his right hand by the handle. (Mother) came at him and he swung in a circular motion with the knife which connected with the left side of (mother’s) neck. The knife entered the neck at this point and went straight through the neck to the other side and in fact the tip was pointing through. The skin on the front of the neck was intact. The blade of the knife was facing [the father]. [The father] was still holding the knife in this position as the movement continued and he pushed (the mother) backwards whereby the knife was cut out of the throat as the blade was facing [the father]. The knife has come out of the neck/throat as (the mother) has fallen away. ”

Again in very short terms, the significance of that account was, on the unanimous evidence of the expert pathologists called in the proceedings, that for the knife to go into the neck and be followed by the action of pushing the mother backwards causing the knife to slice forward and exit the neck, involved two planes of motion, whereas the shape of the wound on the mother’s body indicated a single continuous movement rather than two.

The judge heard a wealth of evidence relating to the family circumstances and relationships generally over the period of six months or more prior to the mother’s death and, of course, about the night of 2 June in particular. The court had available to it the “bundle” from the criminal proceedings comprising well over 1000 pages of statements and other written material, together with transcripts of the oral evidence given by each of the key witnesses in the crown court followed by a transcript of the judge’s summing up.

In order to understand the appellant’s case regarding procedural unfairness it is necessary to set out a short chronology of the key procedural steps that were taken.

The local authority issued its application under CA 1989, s.31 for care orders with respect to the two children on 3 June 2016. The application form contained the following statement under the heading “grounds for the application”:

“The mother was found dead at the family home through a fatal neck injury at about 8.30pm on 02.06.16. The father was found to have injuries (lacerations to head) and was taken to hospital. The father is now in custody having been arrested on suspicion of the murder of the mother.

There are reasonable grounds to believe that:

The children are suffering significant emotional/psychological harm as a result of having witnessed the incident or the immediate aftermath of the incident during which their mother died and their father suffered injury.

The children [suffered] significant physical harm by being exposed to this serious incident. Both are requiring hospital treatment. One of the children sustained a laceration to the arm, the other received bruising.”

The orders made following a series of case management hearings conducted in the second part of 2016 indicate an acceptance by the Family Court that the father’s criminal trial should precede any final hearing in the Family Court. At that stage the criminal trial was fixed for hearing in December 2016.

Each of the 2016 case management hearing orders records, under the heading “threshold”, that :

“the s.31 threshold for the making of orders is not in dispute.”

Further, under the heading “the key issues in the case are:” the following appears in each order:

“a)

Where should the children be placed?

b)

What are their therapeutic needs?”

Experts were instructed within the family proceedings to assess the children’s therapeutic needs and the various realistic options for their future care and, specifically, “whether the father can provide safe parenting to the children”.

On 4 October 2016 the Family Court listed an Issues Resolution Hearing before Theis J on 24 February 2017 and directed that the matter be listed for a final hearing on 27 March 2017 with a time estimate of 5 days. The court order, made on the basis that the father’s criminal trial would conclude in December 2016, expressly stated:

“a)

All parties accept that an extension of time is required for the psychological assessment of the father by Dr A, such that the interviews take place after the criminal trial. All parties accept that the current timetable will need to be amended accordingly.

b)

Father has indicated that in the event he is found not guilty at the criminal trial, he will seek unsupervised contact with the children and, ultimately, for the children to return to his care”

The directions relating to the final hearing were on the basis that the witnesses to be called related to the welfare stage, and did not include any expert or factual witnesses relating to the circumstances of the mother’s death.

Unfortunately, in December 2016, the father’s criminal trial was adjourned and re-fixed for hearing in May 2017. On 25 January 2017 Theis J conducted a further case management hearing. At that hearing the statement of “key issues” was enlarged to include “what harm has been caused to the children by their father?” and to consider, more generally, the management of family relationships within the children’s wider paternal and maternal family. Also, by that time, the question of whether or not the father had taken cocaine and/or codeine (opiates) around the time of the mother’s death had been identified as an issue. The final hearing date in March 2017 was vacated and replaced with a nine day listing starting on 11 July.

On 30 May 2017 the father was acquitted at the conclusion of his criminal trial.

At a further case management hearing before Theis J on 9 June, the local authority sought further time “to consider what findings, if any, are to be sought against the father in the light of the outcome of the criminal trial”. Orders were made for the provision of transcripts from the criminal proceedings and the matter was re-listed for a further IRH on 28 June. A further “welfare hearing” was fixed before Theis J for five days starting on 7 August.

On 26 June 2017 (In compliance with Mrs Justice Theis’ order dated 25 January 2017) the local authority filed its “final threshold document” which, for the first time, sought a finding that the father killed the mother and in doing so used unreasonable force, or alternatively, was reckless. 26 June was eleven working days prior to the date fixed for the start of the final hearing (11 July).

At the final case management hearing on 28 June 2017 the court confirmed that the final hearing remained listed in two parts starting 11 July and then 7 August.

On 10 July, following representations made by the father’s legal team, the court directed that the final hearing be postponed by one week to start on 17 July to allow further time for preparation. In addition, the court directed that lay witnesses should be called during the five hearing days in July with all of the expert witnesses relating to the death of the mother being called during the second week starting 7 August.

It is common ground between the parties that the father presented his case before the judge by direct reference to the criminal law related to self defence. Counsel for all three parties (the local authority, the father and the children’s guardian) cooperated in providing the judge with a legal framework document setting out principles applicable to fact-finding in the Family Court. The legal framework document included an agreed summary of the current criminal law on self defence, including reference to a number of leading cases. At an early stage of her judgment, under the heading “legal framework”, the judge summarised the key features of the legal context within which her evaluation of the factual evidence was to take place. This included, at paragraph 14, a statement as to the role of the Family Court:

“This court’s function is different to the criminal proceedings, and there is a different standard of proof (a Local Authority v S, W and T [2004] EWHC 1270).”

The judge also set out an account of the criminal law on self defence drawn from the document that had been provided by counsel.

Having made a range of findings as to the character and actions of the mother and the father in the period leading up to the key event, the judge then made detailed findings as to the events immediately prior to the mother’s death. Whilst accepting his account of the early stages of the episode starting with the mother picking up the knife, the judge rejected the father’s description of the manner in which the mother came to sustain the fatal neck wound. The judge then set out her central conclusion at paragraph 141 as follows:

“Thereafter the father’s accounts of events are not, in my view, credible when looked with the other relevant evidence. I am satisfied the local authority have established that it was more likely than not the father did not act in self defence. He used unreasonable force and unlawfully killed the mother, most probably due to loss of control fuelled in large part by his burning resentment of the fact that despite all he has done the mother maintained her relationship with [Mr X] and wanted the marriage to end. ”

Thereafter the judge set out in some 17 sub paragraphs the detailed findings that she relied upon in support of the core conclusion set out at paragraph 141.

The appellant’s pleaded ground of appeal with respect to criminal law involves a detailed challenge to the judge’s consideration of the relevant criminal case law and its application to the facts of this case. For example, at the core of the appellant’s pleaded case the following is asserted:

“…the court has failed to apply the subjective test required and as outlined in R v Williams (G) and R v Oatbridge 94 whereby in assessing the reasonableness of force used two questions must be asked:

a)

Was the use of force necessary in the circumstances?

b)

Was the force used reasonable in these circumstances?

It is accepted that there is also a subjective element, namely, whether, on the facts as the perpetrator believed them to be, a reasonable person would regard the force used as being excessive.”

In addition, and for the first time during oral argument, Miss Venters QC, who has been the father’s leading advocate throughout the family proceedings, sought to challenge the judge’s conclusion that the father’s actions were “most probably due to loss of control” (paragraph 141 as set out at paragraph 25 above). The appellant’s case is that, following the introduction of the Coroners and Justice Act 2009, s.54, “loss of control” is now a specific criminal defence in homicide cases. The application of the defence to the specific facts of a case is complicated and is governed by detailed provisions within the 2009 legislation. “Loss of control” was, it is said, neither pleaded before the judge nor raised by the father as a defence. As a matter of criminal law, if loss of self control is established a person who kills another may be convicted of manslaughter rather than murder but only if “the loss of self control” has a “qualifying trigger”, and a person of similar characteristics to the defendant “might have reacted in the same or in a similar way” (C&JA 2009, s.54(1)). The legislation includes detailed provision as to any “qualifying trigger”, the burden of proof and other relevant matters.

Miss Venters explained to the court that, notwithstanding their central importance within the context of the family proceedings, Theis J’s findings potentially had enormous consequences for the father. The rule against double jeopardy no longer applies and the police have applied for disclosure of material, including the judge’s judgment, from the family proceedings. There is, therefore, the potential for the criminal proceedings to be reopened, or reformulated, resulting in a re-trial.

This court, having read and then heard the outline of the appellant’s case on criminal law, was driven to interrupt the oral hearing by asking the parties why it was that the Family Court concerned itself with detailed aspects of the criminal law during a fact finding hearing conducted for the wholly different purpose of determining issues as to the future welfare of children.

For the appellant, Miss Venters’ response to the court’s interjection was to state firmly and clearly that the Family Court should not involve itself in analysis based upon the criminal jurisprudence. In particular, by reference to this case, she submitted that it was unnecessary and impermissible for the Family Court to make findings of “unreasonable force” or “unlawful killing”.

Miss Janet Bazley QC, leading Miss Catherine Jenkins, who both appeared below, pointed to the terms of the local authority’s pleaded case as set out in a “final threshold document and schedule of findings” dated 26 June 2017:

“On 2 June 2016, the father killed the mother by cutting her throat…he used unreasonable force or, alternatively, his actions were reckless in all the circumstances.”

Miss Bazley informed the court that the local authority had not intended to establish a link between the findings that it sought and any test within the context of criminal law. Miss Bazley pointed to the formal response to the proposed findings made on behalf of the father which asserted that he had used “reasonable force” and, for the first time, brought in criminal law concepts which, as the trial progressed, lead all the parties to address the issues in the case by reference to the relevant criminal case law.

However, in the local authority Opening Note the following appears:

“The local authority’s current position is that the preponderance of the relevant evidence is that the father was behind the mother when he caused the fatal injury. If the court concludes that this is more likely than not to have been the case, the local authority will invite the court to conclude that the father killed the mother deliberately.”

Miss Bazley submitted that it is permissible for the Family Court to make a finding that killing was “deliberate”. She is explained that at no time did the local authority seek a finding of “murder”. However, Miss Bazley later accepted that the local authority’s “closing submissions” document includes the following under the heading “conclusion in relation to the other findings sought”:

“In relation to the mother’s death, the local authority invites the court to conclude on all the evidence, that this was an unlawful killing, probably pre-meditated or otherwise carr[ied] out in anger. The court is respectfully invited to firmly reject the father’s assertion that he acted either instinctively (an accident), or in self defence, using reasonable force.”

More generally, and in response to this court questioning why it was necessary for the Family Court to establish precisely how the mother was killed, Miss Bazley submitted that detailed findings were important because of the difference they might make to the welfare determination that the court would have to make at the end of the family proceedings.

Miss Bazley submitted that it was appropriate for the Family Court to use the word “reasonable” in a non-legal manner. She also asserted that the local authority had not sought a finding that the mother’s killing had been “unlawful”. Such a finding, she submitted, was not necessary in the context of the family proceedings.

On the facts of this case, as found by the judge, any reference to the father acting in “self defence” evaporated as the judge rejected his account. Thus, whilst the local authority accepted their part in the collective error by the advocates in encouraging the judge to consider the criminal case law as to self defence, and accepted that the judge should not have made a finding of “unlawful” killing in the family proceedings, Miss Bazley submitted that the detailed factual findings of the judge should stand. She submitted that the references to criminal law, “unreasonable force” and “unlawful killing” were extraneous for the purposes of the Family Court process and they could be struck out from the judge’s judgment and findings without the need for a re-trial of the factual evidence.

For the children’s guardian Mr Malcolm Chisholm, who also appeared below, argued that, as the father’s case was that he was defending himself from an attack by the mother, a finding as to the degree of force used was important and would heavily influence the determinations about the children’s welfare that the Family Court would, in due course make. Mr Chisholm accepted that it was neither necessary nor helpful for the Family Court to analyse these issues by reference to parallel provisions in the criminal law, or, for that matter, the civil law (as for example in Ashley v Chief Constable of Sussex Police) [2008] UK HL 25). Mr Chisholm accepted the court’s observation that, in contrast to criminal or civil proceedings, the focus of the Family Court is not on the adult, or the need to establish a finding of culpability against him; the Family Court’s focus is upon the children and their future welfare. Put shortly, Mr Chisholm said that the question for the Family Court is “is he safe or is he unsafe?” Detailed findings of fact are therefore necessary to determine, for example, whether an individual has over reacted or whether they have been honest and are reliable.

Like Miss Bazley, Mr Chisholm urged this court to strip out the judge’s extraneous references to criminal law and the attribution of criminal law labels to her specific findings, whilst leaving the detailed findings themselves standing. Mr Chisholm submitted that there was a real integrity to the judge’s fact finding judgment as a whole. The factual findings are supported by a wealth of reliable evidence and were, in his words, “absolutely rock solid”.

In response, Miss Venters submitted that the whole trial before the judge and the resulting judgment were tainted by reference at every point to the need to conduct the analysis of the factual evidence and make findings in a manner compatible with the criminal law. All parties now accept that that approach was wrong and, as a consequence, the judgment as a whole cannot stand.

On behalf of the appellant Miss Venters has given a detailed description of the scale of the work that she and those instructing her were required to undertake from, as it were, a standing start on 26 June in order to be able to represent the father in meeting a full re-hearing of the criminal allegations in the Family Court at a hearing starting 15 working days later on 17 July. Put shortly, no fewer than 42 witnesses were listed to give oral evidence before the Family Court. That list included some 9 medical experts. The written evidence comprised 3172 pages. The transcripts of the Crown Court proceedings, which were delivered in a piecemeal fashion day by day during the preparation period, totalled 767 pages. The material included 12 DVD’s each of which required careful viewing.

There was, apparently a particular problem in that the criminal bundle, which was paginated, was not in any logical order when the father’s legal team began working on it. Thereafter, at a relatively late stage, the local authority re-issued the bundle in a different order with different pagination thereby generating yet further work and further potential for confusion for the father’s lawyers.

On the basis that the only issues before the Family Court related to welfare, Miss Venters, who is a solicitor advocate, had not sought legal aid for the instruction of junior counsel. Despite making an urgent application, legal aid was not extended to bring in a junior until 11 July. In contrast Miss Venters pointed to the fact that the local authority had throughout instructed both leading and junior counsel and that the local authority legal team had had an additional three weeks of preparation during the period after the criminal trial up to 26 June when they filed the amended list of findings.

During the very busy period of preparation Miss Venters records that there were some 407 e-mail communications between her instructing firm and the other parties each dealing with one or more aspect of the factual evidence.

In relation to the appellant’s case under Article 6, Miss Venters makes one overarching submission and one very specific submission each pointing to the overall unfairness of the process.

The overarching submission can be recorded shortly. It is that, despite their very best endeavours, the father’s legal team were simply not able adequately to prepare for the fact finding hearing. Although the “criminal bundle” had been disclosed and copied to the father’s legal team in the family proceedings as the criminal process went on, it had not been read by them because the material in it was not, at that time, relevant to any factual issues that were to be litigated before the Family Court. Miss Venters, understandably, states that any time spent working on the criminal papers would, in any event, not have been covered by the father’s Family legal aid certificate at that stage.

In relation to equality of arms, Miss Venters points out that the local authority had taken three weeks after the conclusion of the criminal trial to consider the criminal material before disclosing, for the first time, that they intended to seek findings upon it. Thereafter, in contrast, the father was given just 7 days to file his response.

The specific point relied upon by the appellant under Article 6 which was, again, unfortunately, raised for the first time in oral argument, relates to the reliance placed upon the letter from the father’s criminal defence solicitors dated 2 December 2016 (set out at paragraph 8 above) during the Family Court trial.

I have already explained the significance placed on the 2 December account by the experts, it being the unanimous expert view that the mechanism described in that letter would involve two planes of motion, whereas the injury to the mother was likely to have resulted from one single movement of the blade.

Miss Venters told this court that the 2 December 2016 letter was not provided by the father’s criminal team to the advocates in the family proceedings until 1 August, a week prior to the second part of the hearing when the experts were due to attend and, thereafter, the father was due to give his evidence. During the hearing the terms of the December 2016 letter were taken by all parties, including Miss Venters, as being the father’s account. It is only, Miss Venters reports, as a result of consideration she has been able to give to the case since the conclusion of the Family Court trial, and after the judge’s judgment, that she now understands that the second part of the December 2016 account, namely that the father pushed the mother backwards, has never been an account given by him in police interviews, during the criminal trial or during the family proceedings. The December 2016 letter was put to the father in the witness box before Theis J and he simply accepted that that account had been given.

Miss Venters submits that the fact that she failed to notice that the pushing element in the December 2016 account was not, in fact, a description that her client had ever actually given in evidence, is but one example, albeit a very significant one, of her overall inability to be on top of her client’s case as a result of the wholly unrealistic time afforded to the father’s team for preparation.

Miss Venters offered as a further example, the lack of sufficient time for her to consider whether or not the eldest child, A, should be called to give oral evidence within the family proceedings.

Candidly, Miss Venters told the court that she is not now able to identify other specific aspects of the father’s case which, as a result of the pressure of work, were not presented to the court. Her position was, however, that, as an experienced professional she “simply did not have a grip on the evidence” in order to identify what issues should be raised in cross-examination or otherwise.

Miss Venters reports that, despite expressly raising in detail the many difficulties she faced, and despite taking up a dozen or so pages of her opening Position Statement at the start of the hearing listing the difficulties that were still outstanding, the court pressed on with the hearing with the result that Miss Venters told this court that she felt that she simply “wasn’t being heard in anyway” on these points by the other parties or by the judge.

In response to the appellants case under Article 6 with reference to the December 2016 solicitors letter, Miss Bazley took the court to five specific references drawn from the father’s police interview, his initial statement in the care proceedings and his account given on two separate occasions to two different experts in the care proceedings. In each of those references the father describes swinging the knife before, then, pushing the mother and finally dropping the knife prior to exiting the room.

Miss Bazley also drew attention to a joint statement drawn up following a meeting of six of the Pathologist/Forensic Science experts instructed in the criminal proceedings that took place on the 4 May 2015. That record includes the following:

“In discussing the explanation advanced by the defendant (a transfixing stab wound to the neck followed by a different plane of action pulling forward and exciting the neck…)”

The court’s attention was drawn to part of the transcript of the father’s cross-examination in front of Theis J. Having confirmed the first part of the account in the December 2016 letter the cross-examination continued as follow:

“Q. Yes, and the second part of your account is that you then, with the knife through her neck, pushed (mother) backwards, causing the knife to come out through the front of the neck.

A. That’s what I thought it felt like, yes, that’s…

Q. What do you think now?

A. I don’t know. I mean I talked to the doctor about it, and he said that memory is a strange thing. Your brain naturally wants to remember things…”

And then a short time later it continues:

“Q. In December, this was your clear memory and as was described in the formal document…

A. Yes

Q. …to the court which followed it, and which was signed by you…

A. Yes

Q….your detailed explanation and account.

A. Yes

Q. And you stood by it through the trial.

A. Yes, I did because I don’t know any better. I mean, that’s …it feels like that. I can’t, and I said in the trial, I’m sure I did, that I can not be 100% sure that that memory is real, I don’t know

…

A.

I don’t know, I mean, even the judge had turned round and said to my counsel that why would I say such a statement, it doesn’t help my case. Which was…yeah, fine, it didn’t, but it felt like the truth. No matter whether it was…whether I was a 100% sure or not. I was trying my best to tell the truth.”

On the basis of these references, Miss Bazley submitted that it was quite wrong to say that there was any element of surprise when the December 2016 letter was ultimately produced in the family proceedings. The terms of the letter were entirely consistent with the father’s case as it had been explained by him on a number of occasions and as it had been expressly understood within the criminal trial.

More generally, Miss Bazley drew attention to the full and thorough cross-examination that Miss Venters had undertaken of each of the factual and expert witnesses. She pointed to the fact that, save for the misunderstanding of the December 2016 letter which is now asserted, the appellant cannot point to any aspect of the family process which resulted in his case not being fully and properly understood by the judge. The difficulties the father’s legal team faced were acknowledged by the court and the response in postponing the start of the trial and then organising that the experts would not be called until the August hearing dates was, it is submitted, a fair and proportionate rearrangement to meet the difficulties that were complained of. Miss Bazley therefore submits that there was no actual unfairness in this case.

Contrary to the picture painted by the appellant, Mr Chisholm submits that, despite the pressure of time, the fact finding hearing was a very orderly and normal process. He accepts that Miss Venters and her team must have been very busy because the result was that they achieved a full and proper presentation of the father’s case. In any event, in the end, the issue before the judge was straightforward, namely, was it credible for the father to say that the mother came at him and he just slashed at her or, as the judge found, did he act unreasonably in the circumstances that presented themselves.

In response to these submissions, Miss Venters asserted that she had continued to complain about the unfairness of the process throughout the hearing.

Although the father’s grounds of appeal implicitly accepted that the judge had been obliged to apply the relevant elements of the criminal law directly within her analysis of the evidence and in drawing factual conclusions, at an early stage of the oral appeal hearing the court questioned whether the criminal law should have any place in a fact-finding determination made in the Family Court. As a result of our intervention, all parties before the court readily accepted that the structure and substance of criminal law should not be applied in the Family Court and, to the extent that that had occurred in the present case, the court process and the judge’s evaluation had been conducted in error.

The parties were right to concede the point, and to do so without argument, as they did. The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare. Similarly, where facts fall to be determined in the course of ordinary civil litigation, the purpose of the exercise, which is to establish liability, operates in a wholly different context to a fact-finding process in family proceedings. Reduced to simple basics, in both criminal and civil proceedings the ultimate outcome of the litigation will be binary, either ‘guilty’ or ‘not guilty’, or ‘liable’ or ‘not liable’. In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established.

Interestingly, the respective roles of the family and criminal courts do not seem to have been the subject of judicial pronouncement in reported cases save for the flurry of a brace of decisions given within seven days of each other in May 2004. The first is a decision of the Court of Appeal [Dame Elizabeth Butler-Sloss P, Thorpe and Mantell LJJ] in Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567; [2005] Fam 134 in the judgment of the court, given by the President, the following is relevant:

The second case is A Local Authority v S, W and T [2004] EWHC 1270 (Fam) in which Hedley J, who had been referred to the decision in Re U; Re B given a week earlier, visited the same point in the context of rehearing factual evidence surrounding the death of a baby, who, it was alleged, had been shaken by his father, notwithstanding the father’s earlier acquittal on a charge of manslaughter before a criminal court. Hedley J described the different approach of the criminal court and the family court in these terms:

The extracts from the judgments of Butler-Sloss P and Hedley J helpfully, and accurately, point to the crucial differences between the distinct roles and focus of the criminal court, on the one hand, and the Family Court, on the other, albeit that each may be considering the same event or events within their separate proceedings. Against that background, it must be clear that criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court. Given the wider range of evidence that is admissible in family proceedings and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of ‘murder’ or ‘manslaughter’ or ‘unlawful killing’. How is such a finding to be understood, both by the professionals and the individual family members in the case itself, and by those outside who may be told of it, for example the Police? The potential for such a finding to be misunderstood and to cause profound upset and harm is, to me, all too clear.

Looked at from another angle, if the Family Court were required to deploy the criminal law directly into its analysis of the evidence at a fact-finding hearing such as this, the potential for the process to become unnecessarily bogged down in legal technicality is also plain to see. In the present case, the judge’s detailed self-direction on the law of self-defence, and the resulting appeal asserting that it was misapplied, together with Miss Venters’ late but sound observations about the statutory defence of ‘loss of self-control’, are but two examples of the manner in which proceedings could easily become over-complicated and side-tracked from the central task of simply deciding what has happened and what is the best future course for a child. It is also likely that the judges chosen to sit on such cases in the Family Court would inevitably need to be competent to sit in the criminal jurisdiction.

There is no need to labour this point further. For the reasons that I have shortly rehearsed, as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts. As my Lord, Hickinbottom LJ, observed during submissions, ‘what matters in a fact-finding hearing are the findings of fact’. Whilst it may not infrequently be the case that the Family Court may be called upon to re-hear evidence that has already been considered in the different context of a criminal prosecution, that evidence comes to the court simply as evidence and it falls to be evaluated, in accordance with the civil standard of proof, and set against whatever other evidence there may be (whether heard by the criminal court or not) for the sole purpose of determining the relevant facts.

That the Family Court process in the present case fell into error in the manner that I have described is now conceded and is not in doubt. That it did so is a matter of both surprise and regret in circumstances where the highly experienced advocates for all three parties jointly advised the judge that it was necessary to rely directly on the criminal law and, so far as the local authority are concerned, where a specific finding of ‘unlawful killing, probably pre-mediated or otherwise carried out in anger’ was sought.

What is the impact of this error on the overall integrity of the process before Theis J and the judge’s detailed underlying findings? Miss Venters submits that the whole hearing was irrevocably tainted by focus on the criminal law and the need to achieve a finding of ‘unlawful killing’ against the father. The local authority and the guardian, conversely, argue that the high-level findings of ‘unreasonable force’, ‘unlawful killing’ and ‘loss of control’ are extraneous and can be struck out leaving the judge’s discrete factual findings intact.

Given the scale of the hearing before Theis J, in terms of time, endeavour and cost, any rehearing should only be contemplated if there is no alternative available course. As will be apparent from this judgment, this court has not begun to evaluate the soundness of the judge’s underlying findings and, for these purposes, I am prepared to accept that each of the 17 detailed findings made at paragraph 141 may be, as Mr Chisholm cast them, ‘absolutely rock solid’. It remains the case, however, that the court was led into fundamental error in relation to a matter of legal principle. It is clear from the local authority opening statement and from its closing submissions that it was presenting its case on the killing in the terms of the criminal law; that was the case that the father understood he had to meet and that was plainly the mindset of all three legal teams and of the judge. The fact that this appeal was being run, and responded to, as a detailed debate conducted within the criminal law of self-defence is proof enough that the fundamental error that has now been identified (and accepted) was not understood by any of the parties prior to the hearing in this court.

Given the importance, in terms of its scale and the potential impact upon him, I regard the fact that the court was wrongly drawn into making a finding of ‘unlawful killing’ within these family proceedings, and given the manner in which the proceedings were wrongly focused from the start on establishing culpability in the context of the criminal law, I would be minded to accept Miss Venters’ submission that the case as a whole was tainted to such an extent that it is insufficient simply to strike out certain offending words from the judgment. But, before reaching a conclusion on this all-important question, I propose to consider the father’s case more generally in relation to ‘fair trial’.

Having set out the key elements in the appellant’s case in relation to the ability of his legal team to meet the case against him in a manner that was fair and proportionate, it is possible to deal with this aspect of the appeal shortly.

An advocate as experienced and robust as Miss Venters deserves to be taken seriously when she tells an appellate court that, in consequence of the difficulties that she has explained, she ‘simply did not have a grip on the evidence’ and that, despite giving a clear and specific account of her professional difficulties, her client’s case in that regard was not heard. When the factual finding that the court has made is of the magnitude and, in terms of its impact in the family proceedings and elsewhere, importance as the one reached by the judge here, the need to take what is said seriously is particularly acute.

Although we have not drilled down to detail, or examined the trial documents and other material, there is no real dispute about the scale of the task facing the father’s lawyers when, for the first time on 26^th June, they understood that the criminal evidence was all to be re-heard within the family proceedings. They had, initially, 11 working days to prepare and, although that was subsequently extended to 15 and the experts were not called until 3 weeks after that, it seems likely to me that the timetable imposed by the court on the father’s team was, in the circumstances, untenable.

It is of particular note that it was only in the local authority Opening Note, dated 11^th July, that the father will have read for the first time that a finding of ‘deliberate’ killing was being sought against him in the Family Court.

Although no specific example of the father’s case not being correctly or fairly presented to the judge is pleaded in the Grounds or Skeleton Argument, Miss Venters’ late reference to the importance of the 2^nd December 2016 criminal solicitor’s letter is of significance. She, as the advocate who was in charge of the father’s case, has told this court that what is said in the second part of the account in that letter has never actually been directly given in evidence by her client. It has simply been taken as read as being his account and, then, dismissed as tenable by the experts in a manner which the judge, understandably, found to be of importance. For my part I did not regard the five references to which we were taken by Miss Bazley as being conclusively against the point that is now being made; they may be or they may not be. Equally, the extract from the transcript of the father’s cross examination, rather than being reassuring that what was said in 2 December document was his accurate memory, seemed to bring the issue yet further into doubt.

The importance of the father’s account on whether there was one motion or two movements with the knife is plainly high. In terms of determining the issue of ‘fair trial’, it is neither necessary nor wise for this court to analyse the matter further. For my part, the fact that the father’s advocate has now raised the issue, and has told this court that, because of the speed of preparation (and the document’s late delivery), she only appreciated its significance after the end of the proceedings, may well establish that, as a result of the undue pressure of time, an important aspect of the father’s case may not have been presented fairly to the court.

The hearing of this appeal took an unusual course. As a result of the intervention of the court, we have not heard the full appeal. Instead, the advocates responded to and conceded the point of principle raised by the court concerning the relevance of criminal law and we then heard shortly on the ‘fair trial’ issues before adjourning to take stock of the appeal in the light of those submissions.

Having now undertaken the stock-taking exercise, and for the reasons that I have expressed thus far, it is clear, firstly, that a serious error occurred in the trial in relation to the relevance of the criminal law. Secondly, that error may not, of itself, justify ordering a rehearing, but the option of simply striking the offending words from the judgment may not be an adequate remedy given the significance of what had been, wrongly, said. Thirdly, whilst, again, the points made about a lack of a fair process may not establish, as night follows day, that only a rehearing will provide a remedy, what is said about the 2^nd December letter, given its importance in the case, is of real concern.

Although an error of law may not necessarily lead to a finding that there has not been a ‘fair trial’, in the present case, when that error goes to the very focus of the fact-finding process and the judge’s analysis, I consider that the point sits squarely within the rights protected by Article 6. The two matters that I have thus far considered separately in this judgment should therefore, properly, be drawn together. If that is done then, albeit with a heavy heart, I am fully persuaded that in combination, looking at the matter overall, and taking both elements into account, this appellant has not been afforded a sufficiently fair trial in the Family Court. As a consequence, if my Lady and my Lord agree, this case must, I am afraid, now be retried before a different tribunal.

Moving beyond the circumstances of the present appeal, and building upon what is said at paragraphs 61 to 67 above, the following general observations as to the approach of a family court when trying, or re-trying, factual issues which could also be framed as a criminal charge are intended to be of assistance to all levels within the Family Court, where the need to undertake such a fact-finding exercise is by no means unusual.

By way of summary, the following points are, in my judgment, clear:

Where there has been, or may be, a criminal prosecution in relation to the actions of a parent or other person connected with a child whose future welfare is the subject of public or private law proceedings before the Family Court, the question of whether the factual matters that may support such a prosecution should also be litigated within the family proceedings falls to be determined by the Family Court on a case-by-case basis.

The Family Court should only embark upon a fact-finding process where it is necessary to do so. The recently updated Practice Direction FPR 2010, PD12J ‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’, relating to private law proceedings includes the following guidance which is of more general application to all proceedings relating to the welfare of children where ‘domestic abuse’ or other potentially criminal activity is alleged:

In addition the factors listed at paragraphs 36 and 37 of PD12J are also likely to be relevant in deciding whether to conduct a fact-finding process in relation to ‘domestic abuse’ or any other potentially criminal activity in any proceedings relating to the welfare of a child:

On the basis of the guidance in PD12J, and on the basis of general principles, a family court should only embark upon a fact-finding investigation where it is both necessary and proportionate to do so, having regard to the overarching purpose of public law proceedings of (a) establishing whether the CA 1989, s 31 threshold criteria are satisfied and (b) determining the future plan for the child’s care by affording paramount consideration to his or her welfare.

Where, as is in the present case under appeal, one of the parents has died in the course of an altercation with the other parent, it may well be necessary to investigate the broad context of the relationships within the family and the behaviour of the parents over a period of time, but it does not follow that it will also be necessary for the court to determine precisely how the death occurred and the role, if any, that the surviving parent played in it. In each case, it will be a matter for the judge in the Family Court to decide, in the circumstance of each individual case, whether some or all of the issues that relate directly to the death need to be investigated in the family proceedings and, if possible, determined.

For my part, and from experience of a number of such cases over the years, the importance, in some cases, of the court and the children knowing whether or not the surviving parent’s actions were reasonable or not in relation to the circumstances of the death itself is likely to render a fact-finding hearing necessary, but this, it must be stressed, is a matter for the trial judge to determine in each case. That general observation is in line with the judgment of this court [Wall LJ and Neuberger LJ] in Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181; [2005] 1 FLR 285 at paragraph 56:

The potential for future harm to a child where one parent has been directly involved in the circumstances that have led to the death of the other parent, is by no means limited to the risk that the surviving parent may physically injure the child. Indeed, future physical injury may be low on the spectrum of future potential harm. It is the potential for future emotional and psychological harm arising, either directly from the ‘fact’, if fact it be, that the surviving parent caused the death of the other, or indirectly from the way in which the parent will conduct him/herself in the future as a consequence, which is likely to be of far more importance.

Lastly, I would mention the specific matter of the use of language. The potential for the court to become drawn into reliance upon criminal law principles is demonstrated by the present appeal. Even where the family court succeeds in avoiding direct reference to the criminal law, it is important that, so far as it is possible to do so, the language of the judgment (and in particular any findings) is expressed in terms which avoid specific words or phrases which may have a bespoke meaning in the context of the criminal jurisdiction, for example ‘self-defence’, ‘reasonable force’ or ‘the loss of self-control’. Phrases such as ‘inappropriate force’ or ‘proportionate force’ may reflect the judge’s findings in a particular case, and avoid the risk that the judge’s words may be misunderstood as expressing a finding based directly upon criminal law principles.

At the end of the day, the often very difficult role of a judge once it has been determined that a finding of fact hearing is necessary can be reduced to the short statement that the family judge’s task in such cases is simply to find the facts. Once any facts are found, they will then form the basis of a more wide-ranging assessment of any consequent risks to the child whose future welfare needs will then fall to be determined.

Finally, I am grateful to My Lady and My Lord who have shared drafts of their respective judgments in this case. As My Lady, the Vice-President, makes plain, she and I are unfortunately unable to agree on the points that she has identified. For the avoidance of doubt, I should also make it plain that I am not able to endorse the list of potentially relevant sub-issues set out by Gloster LJ at paragraph 118. Given the disagreement between us on matters of principle, it is unlikely that we would be able to agree on a single list of relevant considerations. It is also of note that the court was not addressed by counsel in relation to these matters. In the circumstances, rather than offering my own alternative schedule, I consider that is better to step back and leave the decision as to what factors are, or are not, relevant to the trial judge.

This appeal must therefore be allowed and the case remitted to the Family Court. It will be a matter for the new trial judge to determine the extent of any rehearing of the factual issues. During the process of finalising this court’s judgments we have sought submissions from the parties on whether or not the new judge should see either a transcript of Theis J’s fact-finding judgment or transcripts of the oral evidence given during the first fact-finding hearing. Having now considered those submissions, we are agreed that, on the basis that we have held that the hearing before Theis J was, as a whole, unfair, the matter should now be re-heard afresh and the new judge should not see either the original judgment or any transcript of the evidence and that counsel should neither examine nor cross examine any of the factual or expert witnesses by reference to the transcripts of their evidence at the previous hearing.

For the reasons given by my Lord McFarlane LJ, I agree that this appeal must be allowed and the matter be remitted to the Family Court.

I have also had the opportunity of reading the judgment of my Lady the Vice President. Although she agrees with the disposal of the appeal, and with much of McFarlane LJ’s analysis, in two respects her approach to fact-finding hearings differs from his. Generally, I prefer the approach of McFarlane LJ; and, briefly, I will explain why.

In respect of the first point of divergence between McFarlane LJ and Gloster LJ – the extent to which the court is required to make findings as to the circumstances of a killing such as occurred in this case, and as to the reasonableness of the conduct of the surviving parent – with respect, it seems to me that the difference between them is not radical but only one of degree.

In dealing with the local authority’s application under section 31 of the Children Act 1989, a key issue was, of course, where the children should be placed. That was an issue that had to be considered through the prism of the section 1 obligation to treat the children’s welfare as a paramount consideration, but with the presumption, encapsulated in paragraph 4 of FPR PD12J, that the involvement of a parent in a child’s life will further that child’s welfare, so long as the parent can be involved in a way that does not put the child at risk of suffering harm. The ultimate issue before the Family Court here was what future arrangements were in the best interests of the children; but, given the factual background in this case, there was clearly a sub-issue of whether father could provide safe parenting to the children. Indeed, experts were instructed to opine on that very issue (see paragraph 15 above). Both the ultimate issue, and the sub-issue I have identified, required the court to make an assessment of all material factors, including relevant facts that might affect the outcome of that assessment.

The court was therefore bound to make any findings of fact necessary for those assessments. It was not obliged to make any findings that were unnecessary for that purpose; indeed, it was required to restrict its findings of fact to those that were necessary. That is a proposition of such obviousness that, in my view, it requires no authority; but, although made in the specific context of whether a fact-finding hearing is appropriate as the first limb of a split hearing, the observations of Wall LJ in Re W (Children) (Concurrent Criminal and Care Proceedings) [2009] EWCA Civ 644; [2009] 2 Cr App R 23 at [27]-[35] appear to me appropriately to emphasise the point. Whether such a split hearing is necessary or appropriate is a discrete question, but driven by the same considerations.

In assessing what facts are necessary properly and fairly to determine the ultimate question of what is in the best interests of the children, the court clearly has a wide discretion; in other words, there is a wide range of legitimate judicial response to that question.

In this case, there is no doubt that father killed mother; although the circumstances in which that death occurred are controversial. Those circumstances may be relevant to several aspects of the future welfare of the children, e.g. most obviously, whether father poses a risk of harming the children, physically, psychologically or emotionally. Given that they will inevitably, in time, come to learn that their father killed their mother, it may also be in the children’s best interests to know something of the circumstances in which the killing occurred; although I agree with Gloster LJ to the extent that she says that it may be more usually important for children who have been abused to know who abused them when they were young, the issue in Re K (Non-accidental Injuries: Perpetrator: Evidence) [2004] EWCA Civ 1181; [2005] 1 FLR 285 (see [88] above).

In relation to other matters referred to by Gloster LJ, generally I would not myself seek to impose constraints on Family Court judges as to the facts they might consider it necessary to find to ensure a proper and fair welfare assessment; nor am I convinced of the benefit of specific guidance on the detailed approach to their fact-finding task. In respect of whether the Family Court needs to make a finding that the force used by father on mother was or was not reasonable, I consider that that is a matter that can safely be left to the Family Court judge who will be well-used to making such judgments. However, without inhibiting that judge in any way, it would not surprise me if he or she did consider it necessary to make such a finding. In my view, any finding should be made without recourse to the technicalities of the law of criminal self-defence, for the reasons I set out below.

In relation to specific matters to which Gloster LJ refers:

The second point of divergence between McFarlane LJ and Gloster LJ is more stark. McFarlane LJ considers that criminal law concepts, such as the elements that must be established to prove guilt or disprove a defence, have no place (“neither relevance or function”) in family proceedings; whereas Gloster LJ considers that it is unavoidable that family court judges apply such criminal law concepts to fact-finding trials. On this issue, I very firmly prefer the view of McFarlane LJ. With respect to the contrary view of Gloster LJ, I agree with him that it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.

Of course, the same incident may give rise to proceedings in a number of different fora – the criminal courts, the civil courts, the Family Court, disciplinary tribunals. Those may each require findings of fact to be made, but restricted to the facts necessary for the determination of the issue before the particular tribunal, and then they will be subject to the particular substantial, procedural and evidential rules that apply to the determination of those particular issues in that jurisdiction, including, in criminal courts, technical defences. Those rules will be tailored to ensure that the issues are determined fairly and properly in the context of the particular tribunal.

For example, for Family Court purposes, whether or not one parent was provoked into attacking the other may be relevant to the assessment of what is in the best interests of the children; but I am unconvinced that, where the violence results in death, a Family Court is required to consider such circumstances only in the context of the highly elaborate template for loss of control found in sections 54-55 of the Coroners and Justice Act 2009 (provocation having been abolished as a partial defence to murder from 4 October 2010). Nor do I think that the Family Court need concern itself with the technicalities of self-defence, although I accept that the Family Court might consider it necessary for its purpose to make a finding that force used by one parent on another was more than the reasonable force required to repel an attack. Similarly, the effect of alcohol and drugs, and abnormality of the mind and mental functioning, on the criminality of the actions of a perpetrator is the subject of a substantial body of criminal jurisprudence which I do not consider has any place in the Family Court.

With great respect to Gloster LJ and others who may share her contrary view, for the reasons given by McFarlane LJ, I firmly consider the importation of concepts from one tribunal to another – and, in particular, from the criminal courts to the Family Court – is inappropriate, unnecessary and unwise, and should be avoided.

I agree with the disposition of this appeal proposed by McFarlane LJ, namely that the case should be remitted to the family court to be retried before a different tribunal.

For the reasons set out in paras 72–77 of McFarlane LJ’s judgment, I have no doubt that; the appellant did not receive a fair trial of the issues which Theis J considered arose for determination in the welfare proceedings. That was particularly so in circumstances where the local authority had significantly changed its case in the weeks leading up to trial.

Thus, it was only on 26 June 2017 that, for the first time, the local authority in its final threshold document sought a finding that “the father killed the mother by cutting her throat and used unreasonable force, or alternatively, his actions were reckless in all the circumstances.” (My emphasis). The local authority’s case evolved further in its opening note at trial where – again for the first time – the local authority alleged not merely that the force used by the appellant was unreasonable but, because “the preponderance of the relevant evidence is that the father was behind the mother when he caused the fatal injury” ……, “the father killed the mother deliberately.” (My emphasis); see para 33 above. By the time of the local authority’s closing submissions, its case had evolved still further, into the extremely serious allegation that “this was ‘an unlawful killing’, probably pre-meditated.” (Again, my emphasis)

However, as my Lord has enumerated, the increasingly serious nature of the local authority’s allegations was not the only unfair aspect of the hearing so far as the appellant was concerned. For those reasons I would agree that the family court welfare determination needs to be set aside and heard again.

However, there are two respects in which I differ from the approach expressed by McFarlane LJ in paras 61–71 and paras 78–92 of his judgment. It is for this reason that I have considered it appropriate to deliver a separate judgment, notwithstanding that I agree with the ultimate disposition of this appeal.

I recognise, of course, that the function of a fact-finding family court in the context of care proceedings is very different from the function of a criminal court. I also recognise, as McFarlane LJ says in para 62 above, that the purpose of such a fact-finding determination is to evaluate the best option for the future care of a child, not to determine the guilt or innocence of an individual charged with a crime. I also fully recognise, that, as stated in Re U (Serious Injury: Standard of Proof); Re B (Supra), and A Local Authority v S, W and T (Supra) referred to by McFarlane LJ, it may be necessary in care proceedings for the judge, in effect, to retry issues that have already been determined in a criminal trial on the basis of a different standard of proof.

The two respects in which I differ from McFarlane LJ’s approach are the following.

First, I should say that I agree with the views expressed in paras 83-87 of his judgment, leading to his conclusion in para 87 that:

“87.

Where, as is in the present case under appeal, one of the parents has died in the course of an altercation with the other parent, it may well be necessary to investigate the broad context of the relationships within the family and the behaviour of the parents over a period of time, but it does not follow that it will also be necessary for the court to determine precisely how the death occurred and the role, if any, that the surviving parent played in it. In each case, it will be a matter for the judge in the family court to decide, in the circumstance of each individual case, whether some or all of the issues that relate directly to the death need to be investigated in the family proceedings and, if possible, determined.” [My emphasis.]

However, whilst affording due respect to McFarlane LJ’s greater experience in family cases, I do not accept the implicit assumption in the following paragraph of his judgment (para 88) that, in a case such as the present, and indeed in this case, the

“……importance, in some cases, of the court and the children knowing whether or not the surviving parent’s actions were reasonable or not in relation to the circumstances of the death itself”

leading to the conclusion that that “is likely to render a fact-finding hearing necessary”, if, by that statement, McFarlane LJ is suggesting that there is (or is likely to be) a need for the family court in this case to determine, and the children to know, whether:

I can see that there may well be a need for the court to know more generally, in relation to the circumstances of the death, whether, for example, the father and /or the mother had been taking drugs or drinking, or there had been a previous history of violence or domestic abuse, or the parents had allowed the children to be present when they were arguing. All these matters may inform the court’s views about the checklist of welfare factors under section 1(3) of the Children Act 1989, and in particular s1(3)(e) - “any harm which he has suffered or is at risk of suffering”). However, I do not agree with McFarlane LJ’s apparent assumption that it will be, or is likely to be, necessary in this case for the court to determine, and the children to know the answer to, the killing issues, in circumstances where the father has already been acquitted, following a full-scale criminal trial at which he gave evidence on oath and experts also gave evidence.

The statement to which McFarlane LJ refers by Wall LJ and Neuberger LJ in Re K (Non-accidental Injuries: Perpetrator: New Evidence) supra at paragraph 56 was made in the very different context of an adoption case where the first instance judge had felt unable to decide which of one or more of the mother, the father and the grandmother had been the perpetrator of serious non-accidental injuries to a child from shaking. The mother appealed against the judge’s finding that, because the latter could not decide the matter, all three had to be considered perpetrators and the child should be freed for adoption. Whether an order was made for the adoption of the children critically depended on whether the mother had been a perpetrator of harm to the child. Accordingly, this court remitted the case back for determination of the perpetrator issue by a new judge. In contrast, in the present case, (where it is common ground that the threshold conditions in s31(2) are satisfied), and the court is deciding what is the best welfare outcome for the children, it may, in my view, not be necessary to decide the killing issues. As McFarlane LJ has pointed out, that is a matter for the judge trying this case, taking into account the appropriate requirements of Practice Direction FPR 2010, PD12J ‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’, to decide. I would not wish in any way to pre-empt the decision which the judge has to reach in this case.

But in response to the point made by McFarlane LJ at para 88 as to the necessity for a fact finding hearing so that the court and the children may know whether or not the surviving parent’s actions were reasonable or not in relation to the circumstances of the death itself, I would refer to para 35 of the judgment of the Supreme court in S-B Children [2009] UKSC 17, where the court pointed out there is no obligation to identify a perpetrator:

“Of course, it may be difficult for the judge to decide, even on the balance of probabilities, who has caused the harm to the child. There is no obligation to do so. As we have already seen, unlike a finding of harm, it is not a necessary ingredient of the threshold criteria. As Lord Justice Wall put it in Re D (Care Proceedings: Preliminary Hearings) [2009] EWCA Civ 472, [2009] 2 FLR 668, at para 12, judges should not strain to identify the perpetrator as a result of the decision in Re B:

"If an individual perpetrator can be properly identified on the balance of probabilities, then . . . it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification."

Interestingly the Supreme Court also went on (at para 38) to cite the passage in Re K supra referred to by McFarlane LJ.

In a case such as the present, where the issue, as McFarlane LJ has pointed out in para 89 above, is more likely to be whether the father has caused the children emotional harm, and therefore whether there is a potential for future emotional and psychological harm arising from the ‘fact’, if fact it be, that the surviving parent caused the death of the other, it seems to me that the decision whether to determine the killing issues is more finely balanced than McFarlane LJ appears to suggest.

Thus, the judge at the retrial will, in my view, have to give very careful consideration as to whether it is indeed necessary or appropriate in all the circumstances, in order to decide upon the best welfare outcome for the children, for any one or more of the killing issues to be determined. Without in any way being prescriptive, I would see this as potentially involving consideration of the following sub-issues:

The second point where, with respect, I have, difficulty with the approach adopted by McFarlane LJ, is by reference to what standards the family court is to judge whether, as he puts it, “the [father’s] actions were reasonable or not in relation to the circumstances of the death itself”. It seems to me that any determination of whether the father’s actions were “reasonable” would probably, if not necessarily, give rise to a determination of at least the first killing issue (as I have defined them) - i.e. whether the father used unreasonable force when he stabbed the mother in the neck; and, if the submissions put forward at the previous trial by the Local Authority were repeated, and accepted as necessary for determination, also the second and third of the killing issues.

Whilst I share McFarlane LJ’s concerns about the undesirability of introducing criminal concepts into trials in the family court of welfare issues, I see real difficulty in a judge being able to determine whether the father’s conduct was “reasonable” – i.e. whether he is to be criticised in a family welfare context for reacting with violence to the mother’s violent knife attack upon him, and upon their child - without regard to, or applying, criminal law concepts of self-defence, reasonable force, and loss of control. If the judge is indeed required to decide the issue of whether the father used ‘inappropriate force’ or ‘proportionate force’ (see paragraph 90 of McFarlane LJ’s judgment), or whether his conduct was “unreasonable” in relation to the circumstances of the death itself, then I ask rhetorically by what other standards can the judge evaluate the appellant’s past conduct and any potential risk that might give rise to in the future, other than by the relevant criminal standards? What other guide will he or she have to determine the issue as to whether the father’s killing of the mother was blameworthy, unreasonable or inappropriate?

But, ultimately, these are issues with which the judge will have to grapple on a retrial.

For the above reasons, whilst I concur in the conclusion that this appeal should be allowed and the matter remitted to the Family Court, with the directions given in para 93 of his judgment, I cannot agree with McFarlane LJ’s approach in the respects stated above.