GK v PR

Within private law proceedings concerning the welfare of the parties’ son who is now 2 years and 8 months old, the mother (to whom I shall refer as GK) appeals against the decision of a Recorder in the Chelmsford Family Court dated 18 January 2021 whereby, after a fact-finding hearing conducted over 14 and 15 January 2021, he dismissed a wide range of allegations of domestic abuse made against the father (to whom I shall refer as PR). I gave permission to appeal on 11 June 2021 and the matter comes before me six months later on the substantive appeal. The delay in securing an earlier listing is very unfortunate, and contrary to the child’s interests.

Both parties are represented by counsel, neither of whom appeared below. I am very grateful to them both for their clear and helpful submissions.

I have noted a tendency in cases brought on appeal for lengthy skeleton arguments to be lodged. I have had personal experiences of skeleton arguments exceeding 50 pages, and, in one case, running to 73 pages. This is a practice which must stop. The position is clear (emphasis added):

FPR PD27A by para 2.1(b) applies to all hearings in the Family Court.

By para 2.2 “Hearing” includes “all appearances before the court, whether with or without notice to other parties, whether at first instance or (subject to 5.2A.3) on appeal and whether for directions or for substantive relief.

By para 5.2A.1 “Unless the court has specifically directed otherwise….and subject to paragraph 5.2A.2 below..” skeleton arguments are limited to 20 pages.

By para 5.2 all documents in the bundle (which includes skeleton arguments) must be typed or printed in a font no smaller than 12 point and with 1 ½ or double spacing.

By 5.2A.3 “the bundle must comply with PD30A”.

PD30A makes separate, tailored provision for the filing of documents relevant to an appeal. It does not make separate, or different, provision as to the length of skeleton arguments. That is unsurprising. It would be extraordinary if, on appeal, litigants are entitled to file skeleton arguments limitless in length, whereas for the substantive hearing below they are confined to 20 pages. It would similarly be extraordinary if appeals to the Court of Appeal, which are governed by separate rules, are subject (as they are) to strict limits as to the length of skeleton arguments, but appeals heard by a High Court Judge are not. The same must apply to appeals to a Circuit Judge from a decision made at District Judge level.

Accordingly, in my view, by PD27A skeleton arguments upon appeal are limited to a maximum of 20 pages, a limit which should be scrupulously observed unless directed otherwise.

FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for serious procedural irregularity.

The court may conclude a decision is wrong or procedurally unjust where:

The function of the appellate court is to determine whether the judgment below is sustainable. In Re F (Children) [2016] EWCA Civ 546 Munby P summarised the approach as follows:

The appellate court should be slow to interfere with findings of fact. As Lewison LJ said in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 , at paras114 to 115:

PD12J of the Family Procedure Rules 2010 at para 3 defines domestic abuse as including “any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to psychological, physical, sexual, financial or emotional abuse.”

The general principle at para 4 of PD12J is that “Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both parents”.

By para 5 of PD12J, the court must at all stages of proceedings to consider whether domestic abuse is raised as an issue.

By para 16 of PD12J the court must determine as soon as possible whether it is necessary to conduct a fact-finding hearing in order to provide a factual basis for any welfare report and/or assessment of risk, and by para 19 must give directions as to how the proceedings are to be conducted. Para 28 gives guidance as to how the fact-finding hearing is to be conducted.

In Re H-N and Others (Domestic Abuse: Finding of Fact hearings) [2021] EWCA Civ 448 , the Court of Appeal stated that where one or both parents asserted that a pattern of coercive and/or controlling behaviour existed, that should be the primary issue for determination unless any particular factual allegation was so serious that it justified determination regardless of any alleged pattern of coercive and/or controlling behaviour. At paragraph 71 of the judgment, it was stated that the court should be concerned with how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not come within the definition of rape, murder, manslaughter or other serious crimes. Behaviour which falls short of establishing rape, for example, may nevertheless be profoundly abusive and if so, should not be ignored in the family context.

Parliament has now (and since the hearing below) passed the Domestic Abuse Act 2021. S63 provides that where a person 'is, or is at risk of being, a victim of domestic abuse', the court must assume that their participation and evidence will be diminished by reason of vulnerability.

At the time of the hearing below, there were in place extensive provisions governing vulnerable witnesses. These are set out in Part 3A and PD3AA.

Part 3A provides as follows:

By PD3AA para 1.3 it is the duty of the court to identify any party or witness who is a vulnerable person at the earliest possible stage of the proceedings.

Para 5.2 of PD3AA mandates a ground rules hearing prior to any hearing where a vulnerable party, vulnerable witness or protected party is to give evidence, and will at such hearing make participation directions. The sorts of things the court should consider during that ground rules component include the conduct of advocates/parties and any support for the person giving evidence, the form of the evidence, the way in which the evidence is taken, directing the manner of any cross-examination, and considering participation directions, including prescribing the manner in which the person is to be cross-examined.

I note that these various provisions are expressed in mandatory form by use of words such as “must” and “duty of the court”.

I take the essential background briefly from the Recorder’s judgment. The parties met in October 2017. They never had a home together and appear to have lived either at GK’s mother’s home, or PR’s parents’ home. GK is an insulin dependent diabetic who has had a number of admissions to hospital for hypo/hyperglycaemia; stress exacerbates her condition. PR has Tourette’s syndrome and a diagnosis of ADHD. In March 2019, their child was born. In November 2019, they separated. In December 2019, PR applied for a child arrangements order which resulted in interim orders being made in March 2020 and June 2020 providing for the child to see PR on an unsupervised basis but not, at that stage, overnight. In November 2020, GK terminated those arrangements unilaterally. The proceedings had been case managed to a fact-finding hearing on 14 and 15 January 2021, GK having raised wholesale allegations of rape, domestic abuse and coercive and controlling behaviour.

The Recorder came to the case new. He had had no previous involvement. Indeed, there appears to have been no previous judicial continuity. Both parties were represented by counsel, but the task before him was unenviable. The bundle consisted of over 1000 pages. The parties had put in lengthy witness statements, including a 52-page statement by GK filed in June 2020. The judge had little pre-reading time. These challenges are familiar to all judges practising up and down the land in the field of family law.

On the first morning, counsel for GK handed up a schedule of 29 specific allegations upon which she proposed to rely, which the judge regarded as a helpful distillation of GK’s case. It is of note that this approach, which the judge adopted at the invitation of counsel, took place before the following decisions which have cast doubt on the utility and value of Scott schedules, suggesting that a holistic overview is better suited to allegations of domestic abuse:

Hayden J in F v M [2021] EWFC 4 at para 113:

The Court of Appeal in Re H-N [2021] EWCA Civ 448 at para 46:

Poole J in FG & HI and JK [2021] EWHC 1367 at paras 25 and 26:

The risk of applying the Scott Schedule technique is that the judge approaches the case in a formulaic, incident by incident way which detracts from the holistic overview necessary to determine fluid and nuanced patterns. It also runs the risk that incidents which may appear trivial are overlooked and not relied upon. In some cases, a Scott Schedule may be appropriate, for example if the complainant alleges a small number of specific incidents without asserting a pattern of behaviour. But in a case such as this, I am doubtful as to the utility of a Scott Schedule.

During the hearing a number of the allegations were abandoned by GK. The judge identified and categorised the remaining allegations as follows:

3 of sexual abuse;

13 of verbal abuse;

6 separate, individual allegations which did not fit into either of the above categories.

The hearing was conducted on a hybrid basis. GK gave her evidence on the first day by videolink, not as a special measure but because she was shielding. Later that day, and after she had given her evidence, she became unwell, and was admitted to hospital for an episode of diabetic ketoacidosis. Her instructions to counsel were for the matter to continue and that she would participate from hospital via her phone using earphones. There was no application to adjourn. The case continued and PR gave his evidence in court. Judgment was reserved and handed down in commendably short order, on 18 January 2021.

Subsequent to the hearing, a letter from GK’s GP dated 9 June 2021 confirming the hospital admission on the second day said as follows:

The reserved judgment dated 18 January 2021 is structured as follows:

By way of introduction, the judge referred to the large volume of evidence, and said that “Many of the allegations made depend upon the findings I make as to the credibility of the parties. I see my task in this judgment as being to survey the broad canvas of the evidence, to make findings as to who I can rely upon, to compare oral testimony with any documentary support or contradiction and then to indicate the effects of that exercise in setting put what I do and do not find”.

The judge set out the background.

He then cited well-established principles as to the approach to be taken in fact-finding cases. He referred to the caution to be applied when considering demeanour. He referred at other points in the judgment to the fact that people lie for different reasons (the Lucas direction, although he did not reference it by name) and cited the seminal judgment of Russell J in JH v MF [2020] EWHC 86 (Fam). He made a number of references in the judgment to patterns of coercive and controlling behaviour.

The judge went on to review the written and oral evidence of the parties and concluded that GK’s evidence left him with grave concerns, whereas PR overall tried to assist the court with truthful answers.

He then proceeded to analyse each of the sexual allegations, the grouping of verbal abuse allegations, and the further six uncategorised allegations, in each instance either positively rejecting GK’s case, or making no finding, being unpersuaded that she had proved her case.

On 21 January 2021, at a further hearing, the judge reinstated contact between the child and PR, progressing to overnight contact. I am told that the Cafcass Officer is supportive of the contact which is proceeding in accordance with the court order.

GK’s appeal raises six, overlapping Grounds of Appeal.

GK was, at least potentially, a vulnerable party and witness, with particular reference to the impact on her of any actual or perceived intimidation. The court therefore had a duty (“must” to quote Rule 3A.4) to consider whether her participation in the proceedings was likely to be diminished by reason of that vulnerability.

PR submits through counsel that GK was represented and no request for special measures was made either at the outset of the trial or during it, save that the camera should not point at PR during GK’s evidence. It is further submitted that participation by videolink in itself provided GK with reassurance in that she was not physically in the same location as PR.

I agree with Judd J who said in K v L and M [2021] EWHC 3225 (Fam) at [62] that the obligation to consider vulnerability is upon the court, not least because the rules so mandate. The extent of that obligation, or duty, must depend on the context, the issues, the nature of the allegations, the way in which case management has taken place and submissions made by legal representatives. When parties are represented, and in particular where a ground rules hearing has taken place, then I would expect the judge to need to do no more than cast a brief overview over the proposed arrangements.

In this case, despite the fact that both parties appeared by counsel, I am troubled by a number of matters:

No ground rules hearing took place before the fact-finding trial. The rules are clear as to the need for a ground rules hearing. Had it taken place, the vulnerability issues raised in this case would have been addressed. As it is, the judge was left without any previous court guidance, and in my view ought therefore to have applied a more critical, or proactive, eye to participation measures. This case demonstrates, in my opinion, why early identification of potential vulnerability, and a ground rules hearing, are indispensable elements of the case management process.

The judge made no reference to Part 3A in his judgment.

This was not a straightforward case. The allegations contained in the witness statements were numerous. Even when refined in the Scott Schedule they still numbered, initially at least, 29. The bundle was extensive. Some of the allegations were of the utmost gravity.

GK has a medical condition which is exacerbated by stress, and counsel referred to her anxiety and health at the start of the fact-finding hearing. It is apparent from the GP letter (available now to me, but of course not available to the judge, and therefore I have the wisdom of hindsight) that her condition resurfaced as a result of the process of giving evidence. The anxiety for a woman giving evidence in court against a former partner, alleging abusive conduct, and in the context of seeking to (as she sees it) protect her child, cannot be underestimated. The transcript shows that, albeit after giving her evidence, she became unwell during the hearing, towards the end of the first day, including saying that she was struggling to breathe.

No thought was given to a different process of cross examination (perhaps written questions and/or questions directed via the judge, or a focus on particular topics). The very fact of reducing a long witness statement to a number of identified examples, while perhaps of assistance to a judge trying to pick his way through the evidence, may not have best served the case.

It became clear during the hearing before me that, during GK’s evidence at the fact-finding hearing, PR was able to see her throughout on screen. It also appears that she was able to see PR as the camera was pointed at his counsel, behind whom he sat. In my judgment, these arrangements were not appropriate and although her counsel does not appear to have raised objection, it should have been addressed at the outset given the nature of the allegations, GK’s potential vulnerability and the possible impact upon her.

Further, in my judgment the judge nowhere considers the impact of GK’s vulnerability on her giving evidence. He refers to her oral evidence appearing pre-prepared and “dissociated” without considering whether or to what extent trauma induced vulnerability may have caused or contributed to her presentation. Again, in my judgment the subsequent GP letter casts more light on this for me. If GK was indeed subject to extreme stress, caused by revisiting traumatic episodes, that may in part have contributed to what the judge perceived as the unconvincing way in which she gave her evidence.

For matters of this gravity, GK was entitled to have the case, and the hearing, managed in such a way as to enable her to participate as fully as possible and give oher best evidence. The judge, as the transcript shows, was fair and courteous throughout, and tried his best to make the parties feel comfortable. But I am left with the uneasy feeling that GK was not afforded the opportunity to give evidence in the most appropriate form and, in a case where witness presentation was of the utmost importance to the judge, that in itself risks undermining the conclusions.

The essence of the submission on behalf of GK is that the judge failed to consider the general context of coercive and controlling behaviour, and weigh up the allegations of sexual assault by reference to the totality of the evidence. PR submits in response that these were findings of fact made by the judge, and the appellate court should (as the case law makes clear) only rarely interfere with such findings.

In my judgment there is some force in the submission that, contrary to the judge’s stated intention at the outset of the judgment to view the “broad canvas” of the evidence, he in fact adopted a linear approach to the allegations. From paragraphs 32 to the end, the judge carefully considered each allegation, or group of allegations, but to my mind he did not satisfactorily explain how all the allegations, and relevant evidence, impacted on each other in a holistic way. That is particularly important, in my judgment, when a significant aspect of the asserted case is a pattern of behaviour which does not easily lend itself to an analysis of specific incidents, some of which may individually be of relatively little import but cumulatively are destructive, undermining and intimidating. True, the judge referred to controlling and coercive behaviour, but in my opinion, he did not draw all the strands together and survey how all the evidence interlocked.

In that regard, it is of note that little mention is made by the judge of GK’s reports to police, and ABE interview, which (on GK’s case) corroborate, or at the very least are consistent with, her evidence in the family court. Nor is mention made of medical records in which GK reported emotional, physical, and sexual domestic abuse at the hands of PR.

I acknowledge that there was evidence pointing in PR’s favour, such as exchanges of text messages after one of the events complained of which in tone do not sit easily with allegations of abuse, but it was incumbent on the judge to weigh these up (both as to content and tone) in the context of all the evidence pertaining to (i) GK’s vulnerability, (ii) the reports to police and medical practitioners and (iii) GK’s case as to controlling conduct, rather than, as seems to me to have been be the case, weighing them up in the context of this one particular allegation.

There is, too, some merit in the submission that at times the judge appears to have minimised the seriousness of the sexual abuse allegations. For example, he says “I would not be surprised if a healthy young man were to ask repeatedly for sex after a period of abstinence” which could be construed as mitigating, or excusing, inappropriate behaviour, particularly in the context of the other allegations. Elsewhere the judge suggested that “inexperienced young men and women in their first sexual relationships commonly miss cues and misunderstand responses” which, again, could be read as exculpating certain types of behaviour.

A number of specific allegations were grouped together by counsel for GK, and that approach was adopted by the judge. GK’s allegations against PR included words or phrases such as: “dirty”, “fat”, “a tramp”, “fucking stupid”, “worthless”, “fat bitch”, “fucking die”, “I fucking hate you”, “I will fucking drown you in court” and “Not even your fucking dad wants you”. The judge found that unkind things were indeed said, but concluded that none of them, whether individually or collectively, amounted to coercive control. In one passage of his judgment, he refers to them as “shouting, name-calling, accusations of ungratefulness, asking [GK] to leave the home and so on. They are the stuff of many a “matrimonial row”. Again, I tend to the view that the judge was underplaying the significance of such words. At any level they are cruel and undermining, but in the context of the various other behaviours identified by GK could clearly constitute controlling and coercive conduct. I am a little troubled by the judge’s assessment of GK as having a “capacity to feel victimised where a more robust (or simply perhaps more honest) person would see her interlocutor simply had a different point of view” and “M has a tendency to hyper-defensiveness and a capacity to build a case on microscopic detail which others may be able to deal with by the possession of broader shoulders”; such comments suggest that her own sensitivities were in some way contributory to the behaviour complained of. I am troubled also that the judge at para 30 refers to many of the incidents as being “minor or even petty, but the real question for any future court having regard to the child’s welfare is whether the words or actions alleged show a course of conduct by which [PR] is deliberately [my emphasis] coercive, controlling and undermining of [GK] so that domestic abuse becomes a serious issue ion this case”. I cannot accept that intentional misconduct is a pre-requisite for a finding of abusive behaviour. In this regard, I was referred to Re T (2017] EWCA Civ 1889 in which it was said at para 42 that: “…none of the authorities require that a positive intent to molest must be established”.

I do not propose to deal with every single allegation. A number of points are made, which are of a piece with the various matters to which I have referred.

An allegation was made that PR covered GK’s mouth and nose in a threatening manner. In dismissing the allegation, there is no mention of a report to medical professionals of being choked by PR which, on the face of it, is consistent with GK’s account.

Another choking allegation is not found to be proved, but the judge did not refer to reports made by GK to the police and medical professionals of the alleged incident.

When referring to text messages after separation, the judge described them as an irritant, yet GK’s reports to the police laid bare what she described as their abusive and harassing nature i.e the impact upon her of the nature and quantity of messages sent by PR was not properly considered by the judge.

The thrust of the complaint is that the judge did not weigh in the balance what is said to be corroborative evidence from the police records, (including 4 statements taken from GK, and an interview with her, as well as a summary of an interview with PR), medical records, and a witness statement from Ms H in support of GK. Counsel for GK pointed to certain parts of the police evidence which are purportedly consistent with her account to the family court (I have already referred to some of these). On the other hand, counsel for PR says that there are parts of the police evidence which are not consistent, and complaints by GK were made late. The police disclosure is not before me, and I can make no findings. But more importantly, although it was before the judge, he undertook no analysis of the police disclosure in his judgment. He was not assisted by counsel, in that no questions were put to GK in cross examination about her reports to the police. Indeed, the transcript suggests that she had not been given the police disclosure. That being so, I do not see how the judge could have said in a brief sentence in the judgment that there were “different accounts…in both her police and family court statements”. In the absence of any analysis of the extensive police records, and how that affected his overall assessment, and given that GK was not asked questions on this topic, in my view the judge fell in error in reaching this conclusion. The same applies to the medical records, as to which the judge makes no mention. These are highly significant matters, particularly in a case where the judge was strongly influenced by his impression of each party as a witness. I am less persuaded by the submission as to Ms H, who was not called by GK to give oral evidence.

The judge was in an invidious position. GK’s counsel presented a schedule and mounted a case based on the allegations contained in the schedule. But it is apparent from the judgment that in the course of her written evidence GK had raised a number of other serious allegations. The judge referred to three at the start of his judgment: (i) that PR threatened to choke GK in her sleep until she did not wake up, (ii) that shortly before separation he threatened to kill her on several occasions, and (iii) that on five occasions he covered GK’s nose and mouth while she was in bed and snoring or breathing loudly. The first was in fact dealt with by the judge. The second and third do not appear to have been so. I do not think the judge can be criticised for not directly addressing these, as they were not advanced at the hearing in the Scott schedule, but my sense of unease about how the hearing unfolded is only heightened. If the court is required to survey the totality of the evidence, allegations such as these would have been directly relevant. I accept that it was GK’s counsel who put forward a Scott schedule omitting these allegations, probably in order to try and make it manageable, but to my mind the unsuitability of a Scott Schedule approach in this case becomes all the more clear.

I am satisfied that the judge’s findings cannot stand. The failure to consider Part 3A, GK’s vulnerability, and appropriate special measures severely undermines the judgment, particularly in the light of the subsequent GP letter. I cannot be confident that GK was able to give evidence in the best possible way.

I am further satisfied that the judge (i) did not properly consider and weigh in the balance the police and medical disclosure, (ii) minimised the nature of some of the allegations and their potential impact upon GK, (iii) did not consider the totality of the evidence in the round, nor fully address how the individual pieces of evidence played into a narrative of coercive and controlling behaviour, and (iv) relied heavily upon an assessment of each party as a witness, without factoring in the likely impact on GK of giving evidence of traumatic episodes as a vulnerable witness, in the context of a pressurised court setting.

I have considerable sympathy for the judge. He was faced with a mountain of documents, and presented with a Scott Schedule which in my judgment did not adequately get to the heart of the issues at play. Some matters (particularly the police and medical disclosure) should have been more fully explored by the parties during the hearing. Counsel did not invite him to adopt any particular approach to GK’s vulnerability and the apparent stress on GK during her evidence has come to light since the hearing, through the GP’s letter. In the end, however, I am clear that the appeal must succeed.

I will remit the matter to the Chelmsford Family Court for re-hearing. I suggest that it be listed for a half day directions appointment to consider (i) ground rules and participation directions, (ii) how best to examine the case forensically (e.g. by Scott schedules, or, more likely, by the sort of process suggested in FG & HI and JK, or in some other way), (iii) whether the fact finding and welfare aspects of the case should be heard together and (iv) the length of the fact-finding , or combined fact-finding/final hearing.

I decline to impose a stay on the current child arrangements whereby the child spends time each weekend overnight with PR and daily during the week. I have no insight into the welfare issues and note, for example, that the Cafcass Officer is supportive. This hearing has been purely about the fact-finding hearing before the Recorder. I have overturned the findings, but not substituted them with a finding that the allegations are proven. It will be for the court below to determine whether any adjustment to the current arrangements should take place.

For the avoidance of doubt, this judgment should not be taken as suggesting, let alone finding, that GK’s allegations are proved, or are likely at the re-hearing to be proved. I have confined myself to a determination that the judge’s approach was flawed in a number of respects and his findings cannot stand. But that is not the same as saying that on a rehearing a judge cannot, or will not, reach the same conclusions as the Recorder. The judge may, or may not. The judge will start completely afresh and is not in any way constrained by either the hearing below or this decision on appeal.