LG (Re-opening of Fact-finding), Re

By a notice of appeal dated 7 June 2017, a mother sought permission to appeal against the decision of a circuit judge in proceedings in the family court under the Children Act 1989 refusing the mother’s application for the reopening of findings made by magistrates earlier in the proceedings and further refusing her application to terminate the instruction of a psychologist expert witness. On 27 July 2017, I listed the application for an oral hearing with appeal to follow immediately if permission was granted. The hearing took place before me on 15^th September 2017. At the end of the hearing, I gave permission to appeal, allowed the appeal and made consequential case management directions. This judgment sets out the reasons for my decision.

The proceedings concern a girl, hereafter referred to as L, born 9 March 2010 and therefore now aged seven. L’s parents were in a relationship for about four years between 2009 and 2013 and lived together for part of that period. The mother alleges that the father was violent to her on a number of occasions before and after the relationship broke down in 2013. In December 2014, the mother stopped contact between L and the father who then filed an application for a child arrangements order in March 2015, initially seeking contact but subsequently expanding his application to include the issue of residence. The mother raised the allegations of domestic violence and at an early stage in the proceedings sought findings against the father. Amongst the incidents raised by the mother was an allegation that the father had in March 2015 damaged her car at a point when the mother, L and the mother’s older child, hereafter referred to as A, were all in the vehicle. Following a police investigation, the father was charged with an offence of criminal damage arising out of that incident.

On 22 June 2015, a case management hearing took place before the justices sitting in the family court at which a fact finding hearing was directed. At that stage, it was anticipated that the criminal trial in respect of the charge of criminal damage would take place before the fact-finding hearing. The mother was directed to file a schedule setting out five allegations of domestic violence or abuse on which she sought findings, taking into account the fact that it was anticipated that the criminal trial would be concluded before the hearing. In the event, however, the criminal trial was adjourned and thus the fact-finding hearing in the family court took place first, on 19 August 2015. The order made by the justices, incorporating their findings, and their written reasons, show that they concluded that none of the five allegations made by the mother was proved on a balance of probabilities. In their reasons, under the heading “extent to which any witnesses (including the applicant respondent) were believed or disbelieved (if not already stated), and information upon which court relied in reaching its decision”, the justices recorded into alia as follows:

Following the hearing, the justices made case management directions for a Cafcass report, further statements, and listed the application for final hearing on 24 November 2015. The mother filed a notice of appeal against the justices’ decision at the fact-finding hearing. Her appeal was dismissed by a circuit judge on 23 October 2015. The mother then applied for the adjournment of the final hearing and transfer of the proceedings from the justices to a district judge. That application was allocated for hearing on 23 November 2015 by a district judge who refused to order the transfer and directed that the final hearing should go ahead before the justices the following day. The district judge’s order included the following recital:

At the hearing on 24 November 2015, an order was made by the justices by consent providing for the father to have interim contact with L at a contact centre and adjourning the final hearing to 3 February 2016. The interim contact duly took place, and at the hearing on 3 February a child arrangements order was made by consent providing that L should live with her mother and have defined contact with the father. The arrangements for contact were set out in considerable detail, and included a recital recording that both parents stated that they would respect each other as parents and their significance in L’s life. There is no reference in the order to the outstanding criminal charge which the parties were aware was due to take place a few days later.

On 15 February 2016, the criminal trial finally took place. The father pleaded not guilty but, after a trial at which the mother, her older child A and the father gave evidence, he was convicted. A copy of the certificate of conviction, together with the prosecution summary and the legal adviser’s notes of evidence, have been disclosed into the family proceedings. The prosecution summary describes the incident as follows. On 9 March 2015, the father had attended the mother’s home address as it was L’s birthday. As the mother was driving out of the drive, the father drove onto the road and parked his van in a position that blocked her car. At the time, A and L were in the car with the mother. It was alleged that the father had tapped on the window shouting the child’s name. The mother attempted to drive off but the father stood directly behind her vehicle preventing her leaving. The mother continued reversing and the father grabbed hold of the rear of her vehicle and held on as she slowly reversed before letting go and moving round to the side of the vehicle where L was sitting. The mother and A heard a scraping noise of metal on metal. Eventually the mother managed to leave the property. When she subsequently examined the rear passenger door where the father had been standing, the mother found a large scratch. Notes of the evidence given at the trial record the different accounts of this incident given by the mother, A and the father. The mother said that L had been crying and screaming during the incident. A said that L had started by saying “daddy, daddy” but added that “she became distressed as it became more aggressive”. A said that the father had been trying to get L out of the car and was banging on the door. The father denied scratching the car, or getting angry, or trying to open the door. He said that L was smiling and excited to see him. He said that the mother and A had lied about what had happened.

Following conviction, the magistrates made a compensation order in respect of the damage. They also made a restraining order under s. 5 of the Protection from Harassment Act 1997. The order, addressed to the mother, is in the following terms:

Two further contact sessions took place after the criminal trial, but the mother then stopped contact. In due course, the father filed an application to enforce the contact order. On 8 July 2016, the court joined L as a party to the proceedings and appointed a children’s guardian to represent her under FPR rule 16.4. At the next hearing on 21 September 2016, an application was made by the parties for the instruction of an expert to carry out a psychological assessment. The father indicated, however, that he was unable to afford to contribute to the cost of this assessment and the case was therefore adjourned by the justices to 16 December 2016 for a financial means enquiry to take place. The court also directed the Guardian should observe two contacts at the contact centre but, in the event, that contact did not take place. At the next hearing on 16 December 2016, following the means enquiry, the court made an order for the assessment to be carried out by Dr Drake, psychologist, and for the costs to be shared between the mother and the child. The court also ordered the re-commencement of direct contact between L and her father at a contact centre and timetabled the case through for a final hearing when the expert report was available. On 21 December 2016, a letter of instruction was sent to Dr Drake to carry out a wide-ranging assessment, including psychological assessment of the parents and L, and to address a number of specific questions. It is now accepted on all sides that the letter of instruction did not give a balanced summary of the background, in particular of the outcome of the criminal proceedings. Dr Drake subsequently started work on her assessment and had meetings with the mother and L.

Following a change of solicitor, the mother then filed an application for the setting aside of the findings made by the justices in August 2015 in the light of the father’s subsequent conviction for the offence of criminal damage and the imposition of a restraining order. That application was allocated to a circuit judge and listed for hearing on 9 May 2017. At that hearing, the mother applied in addition for a further fact finding hearing in respect of other allegations of abuse, some predating the earlier consent order of February 2016, others said to have occurred more recently, including after the imposition of the restraining order. She also applied for the discharge of Dr Drake as the expert on the grounds that she had been misled by the terms of the letter of instruction.

After a contested hearing on 9 May 2017, the circuit judge dismissed the mother’s application for the reopening of the findings. She further refused the application for a fact finding hearing into “historic matters predating the consent order on 3 February 2016”. She indicated that, in so far as there were relevant allegations subsequent to the consent order, they could be considered at the final hearing. The judge further declined to discharge Dr Drake but, instead, directed that an amended letter of instruction should be sent, stating that

On 7 June 2017, the mother filed a notice of appeal against the circuit judge’s decisions. The notice was initially erroneously sent to the Court of Appeal and then redirected to this court, in accordance with the procedure now in force under the Access to Justice 1999 (Destination of Appeals) (Family Proceedings) Order 2014 as amended in 2016. The grounds of appeal stated that the judge was plainly wrong to continue to rely on the findings made by the magistrates on 20 August 2015 and in refusing to reopen those findings, and further by continuing the instruction of Dr Drake. It was submitted that the psychologist was tainted because her approach to the interviews had been coloured by her original instructions. It was asserted that the additional letter ordered by the circuit judge was insufficient to redress the previous unbalanced approach.

In her clear and careful judgment, the circuit judge referred to the order of 3 February 2016 which she described as significant for a number of reasons. In particular, she noted that it was a consent order agreed by both parties with the benefit of legal advice and representation; that it was made at a hearing which the residence of the child had been settled; and that none of the allegations made, including the outstanding allegation of criminal damage, “were such as to frustrate or impede the making of this consent order”. She noted that the consent order was very detailed and completely silent about the forthcoming criminal trial about which everyone was aware. She stated that there had been no question that the outcome of that trial would have any impact on the arrangements for contact agreed by the parties. Had it been otherwise, the contact provisions would have been phrased to continue up to the trial and then reviewed in the light of the outcome. She further noted that some fifteen months had passed since the making of the consent order and no application had been made by the mother to vary its terms following the father’s conviction.

The judge then referred to the judgment of Cobb J in Re AD and DM (Fact-finding hearing: Application for re-hearing) [2016] EWHC 326 (Fam) and recorded that she had read the judgment, and in particular paragraphs 11 to 16 with care. She quoted from the judgments of Sir James Munby P in Re ZZ and others[2014] EWFC 9 and Hale J (as she then was) in Re B (Minors) (Care Proceedings: Issue Estoppal)[1997] Fam 117 cited by Cobb J in that judgment. The judge then set out her conclusion and reasons in the following passage:

The judge then turned to consider the application for additional allegations to be considered at a further fact-finding hearing. So far as the allegations concerning matters before the consent order of 3 February 2016 were concerned, she noted that they have been known about at the time of and prior to the making of the consent order which provided for extensive contact, that no application had been made to the justices for them to consider or review the allegations, and that, as a result, she could see no relevance or justification for those allegations now being the subject of further litigation. She accepted that allegations that the father had subsequently failed to comply with contact orders and had harassed the mother in breach of the restraining order were relevant matters, but concluded that they could be addressed as part of the overall evidence at the final hearing and did not call for a separate fact finding hearing. The judge did, however, agree that the original letter of instruction to Dr Drake had contained an imbalance in highlighting the justices’ finding that the mother had lacked credibility in the family proceedings whilst making what the judge described as a “token reference only” to the father’s conviction, and to the fact that his evidence had been disbelieved by the criminal court.

For the hearing of the appeal before me, Miss Tina Cook QC was instructed on behalf of the appellant. In her skeleton argument, she made a number of submissions in support of the mother’s appeal against the judge’s refusal to reopen the findings which can be summarised as follows:

that there was in fact only one finding this case, namely the criminal conviction;

that a clear inference could be drawn from the conviction and the restraining order made following conviction that the father had been engaged in behaviour that was domestically abusive;

that there was therefore a material inconsistency arising from the fact that the allegations at the fact-finding hearing had been determined almost entirely on the credibility of the parties, with the justices recording that the mother’s evidence was not credible, whereas, at the criminal trial, where the court was applying a high standard of proof, the court had accepted the mother’s evidence against that of the father;

that by placing disproportionate emphasis on the earlier hearing, the court had wrongly relied on it and failed to pay sufficient weight on the conviction;

that the case involved an alleged pattern of domestic violence about which the court would have taken a different view had the outcome of the conviction, and the restraining order, occurred prior to the fact-finding hearing; and consequently

that it was incumbent upon the court to consider such a pattern under the principles set out in Practice Direction 12J.

In response, Miss Anne Bell on behalf the father submitted inter alia:

that it had been agreed before the district judge in November 2015, and recorded in her order, that the outcome of the criminal trial would not affect the child arrangements;

that there had been no attempt to revisit this subsequently, even after the father’s conviction;

that both the orders of 24 November 2015 and 3 February 2016 had been made by consent in proceedings where the mother had been legally represented under a public funding certificate;

that a copy of the restraining order had been sent to Dr Drake along with all the papers indicating the father’s position to the allegations;

that, although the original letter of instruction to Dr Drake been imbalanced, the papers accompanying the letter were clear as to the background;

that, having regard to the overriding objective set out in FPR rule 1.1, namely to deal with cases justly, to have regard to the welfare issues involved and, so far as practicable, to ensure that the case is dealt with expeditiously and fairly and in ways which are proportionate to the issues, it would be contrary to those principles to reopen the fact-finding hearing at this late stage.

On behalf of the children’s guardian, Mr James Hayward maintained a neutral position on the appeal, whilst emphasising the guardian’s concern about the impact of the delay in the proceedings on L’s welfare.

An appeal against a judge’s decision in a family case is not a full rehearing. An appeal can only succeed if the court is satisfied that the judgment or order at first instance was wrong or that it was unjust because of a serious procedural or other irregularity. Permission to appeal may only be granted if there is a real prospect of success or some other compelling reason why the appeal should be heard.

The guardian is right to be concerned about the delay in the proceedings and the impact on L. This case has now been continuing, more or less without interruption, since March 2015. Miss Bell is right to draw attention to the overriding objective requiring courts, inter alia, to deal with cases expeditiously. The Child Arrangements Programme (“CAP”), set out in FPR Practice Direction 12B reiterates this, providing in para 1.2 that

The fundamental principles, of course, are set out in s.1 of the Children Act. The child’s welfare is the paramount consideration: s. 1(1). When considering an application for a child arrangements order, the court must presume, unless the contrary is shown, that the involvement of each parent in the life of the child concerned will further the child’s welfare: s. 1(2A). In determining such an application, the court must also have regard in particular to the matters identified in the so-called welfare checklist in s. 1(3), including any harm which the child has suffered or is at risk of suffering, the child’s needs, including her emotional needs, and how capable each of her parents is of meeting her needs.

Courts have increasingly recognised the dangers posed by domestic violence and abuse to the welfare of children. This is reflected in Practice Direction 12J headed “Child Arrangements and Contact Order: Domestic Violence and Harm”. The version of the Practice Direction in force at the time of the proceedings before the justices in 2015 and the circuit judge in May 2017 was introduced at the time of the implementation of the Family Procedure Rules in 2010. Subsequently, public concern at the perceived failure to treat allegations of domestic violence with sufficient seriousness in family proceedings has led to a new version of the Practice Direction, which comes into force on 2^nd October 2017, the day after this judgment is due to be handed down.

The current version of Practice Direction 12J in force at the time of the hearing before the circuit judge identifies a number of general principles, which include the following:

identify at the earliest opportunity … the factual and welfare issues involved;

consider the nature of any allegation, admission or evidence of domestic violence or abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;

give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;

ensure that, where violence or abuse is admitted or proven, any child arrangements order in place protects the safety and well-being of the child and the parent with whom the child is living, and does not expose them to the risk of further harm. In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated violence or abuse is safe and in the best interests of the child; and

ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance at paragraph 25 to 27 below.

The revised version of the Practice Direction coming into force on 2October 2017 reiterates these principles in very similar terms and makes a number of procedural changes designed to buttress these principles and ensure that they are properly applied by the courts. The original version defined “domestic violence” as including “any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse”, adding that “this can encompass, but is not limited to, psychological, physical, sexual, financial or emotional abuse”. The revised Practice Direction uses the term “domestic abuse” in place of “domestic violence” but defines “domestic abuse” in the same terms.

These principles are clear and mandatory. But, as this case illustrates, courts have not always found them easy to apply, given the other obligations imposed by the rules, including the overriding principle to deal with cases expeditiously. It is for that reason that the revised version of the Practice Direction introduces new provisions requiring a court to make recordings on the court file and on the face of orders at various stages in the proceedings, to confirm and demonstrate that the issue of domestic abuse has been properly considered and addressed. The importance of these provisions is articulated by the President in a circular, entitled “Domestic Abuse: PD12J”, published on 14 September 2017, the day before the hearing of this appeal:

As the judge in this case rightly recognised, the law to be applied when determining whether to order a fact-finding rehearing is summarised by Cobb J in Re AD and DM, supra, at paragraphs 11 to 16, drawing on the analysis in other cases, particular by the President in Re ZZ, supra. There is a three-stage process. At the first stage, the court considers whether it will permit any reconsideration or review of, or challenge to, the earlier finding. The second stage relates to and determines the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review. As to the first stage, the President stated in Re ZZ (at paragraph 33) that

In this case, I fully understand why the judge was concerned about the delays in resolving the question of the father’s involvement in L’s life. I respectfully conclude, however, that her decision to refuse to set aside the findings or order a rehearing was wrong.

The original fact-finding hearing before the justices was confined to the five allegations set out in the schedule prepared in accordance with the case management directions. As set out above, the overriding objective in FPR rule 1.1 requires the court to deal with a case in ways that are proportionate to the nature, importance and complexity of the issues. It is therefore entirely appropriate for a court in the exercise of its case management powers to confine a fact-finding hearing to the issues that it considers necessary and relevant. Not infrequently, a party alleging domestic violence is directed to identify and rely on a few allegations as “specimen” allegations on which to seek findings. In taking this course, however, parties and the court must be careful to ensure that significant issues are not overlooked. Sometimes a pattern of harassment and other forms of domestic abuse is only discernible by conducting a broader examination of the allegations.

In this instance, one court conducted a partial examination of some of the allegations made by the mother and found that she was not a credible witness and refused, on a balance of probabilities, to make the findings she sought. Another court, applying the higher criminal standard of proof, accepted the evidence of the mother, rejected the evidence given by the father, and convicted him of criminal damage, and then imposed a restraining order from which it can plainly be inferred that the court concluded that his conduct amounted to harassment or had caused fear of violence. No court has carried out a comprehensive investigation of all the allegations, including those considered separately by two courts and additional allegations made by the mother about the father’s behaviour, some dating from before the consent order of 3 February 2016, others said to have taken place more recently and including allegations that the father has broken the terms of the restraining order.

The judge rejected the mother’s application on the basis that the charge before the criminal court consisted of a different allegation from those determined by the justices at the fact-finding hearing. She plainly thought that the fact of the conviction did not necessarily undermine the reliability of the findings. She was plainly right to say, as she did in paragraph 28 of the judgment, that the fact that the father was believed before the family court, but convicted and disbelieved before the criminal bench on a completely different matter, does not mean that the first assessment was necessarily flawed. With respect to the judge, however, this analysis is incomplete. The fact that the father was subsequently convicted and made subject to a restraining order following a trial at which his evidence had been disbelieved does not mean that the assessment of the family court at the fact-finding hearing was necessarily flawed, but it does follow that there is a reasonable prospect that it might have been flawed, and it certainly follows that the assessment was incomplete. If, as anticipated when the case management directions were made by the justices in June 2015, the criminal trial had taken place before the fact-finding hearing, the fact that the father was convicted and made subject to a restraining order would unquestionably have been relevant to the justices’ assessment of the allegations at the fact-finding hearing.

It follows in my view that no court has yet carried out a competitive analysis of the allegations of domestic abuse in this case. These allegations are of great importance, for the reasons identified in Practice Direction 12J. A comprehensive analysis of the allegations may demonstrate that the mother has fabricated or grossly exaggerated her case. Alternatively, it may demonstrate that some or all of the allegations are true and that the pattern of incidents alleged by the mother demonstrates abusive behaviour on the part of the father. The conclusion reached by the court on this issue will have a fundamental impact on the future child arrangements for L, not only on the question of contact but also, possibly, where and with whom she lives.

The judge attached particular weight to the fact that the mother had agreed to contact in February 2016 knowing that the criminal trial was imminent. She observed that “there was no question, when the consent child arrangements order was made, the outcome of this trial, conviction or acquittal, would have any impact on the arrangements for contact which the parties agreed.” She further relied on the fact that fifteen months had passed since the consent order and the mother had made no application to the court to vary the terms of that order following the conviction. Miss Bell similarly bases much of her argument on the fact that the mother consented to contact in this way. But Practice Direction 12J stresses that the court must consider at all stages whether domestic violence or abuse is raised as an issue and further that the court is under an obligation carefully to scrutinise orders made by consent to ensure that, where abuse is established, any child arrangements order in place protects the safety and well-being of the child and the parent with whom the child is living, and does not expose them to the risk of further harm. The fact that the order of 3 February 2016 was made by consent did not absolve the court from the ongoing responsibility of considering whether domestic abuse was an issue or, where it was established, from satisfying itself that the child arrangements order did not expose the child and the mother to the risk of further harm.

I have carefully considered the rationale for the decision reached by this very experienced judge in her clear and careful judgment, but ultimately reached the conclusion that she was wrong to refuse to reopen the fact-finding hearing in this case. The subsequent conviction of the father for an offence of criminal damage to a car at a time when the mother and L were present in the vehicle, and the subsequent imposition of a restraining order to protect the mother and her older child from further conduct amounting to harassment or causing fear of violence, give rise to “solid ground” for challenging the findings made by the justices in August 2015. In my view, there must now be a fact-finding hearing at which the court considers all relevant allegations to establish whether domestic abuse has occurred. It is only after this has occurred that the court will be in a position to determine what arrangements should be made for L and ensure that, if violence or abuse is admitted or proven, a child arrangements order can be put in place that protects the safety and well-being of the child and the other parent.

So far as the instruction of the psychologist is concerned, all parties recognised that the first letter of instruction was inadequate and lacking in balance. Having concluded that the fact-finding should not be reopened, the judge took the pragmatic course of directing the parties to send a supplemental letter. But it is clear that this course has not redressed the balance. In her report filed subsequent to the hearing before the circuit judge, Dr Drake made this observation (at paragraph 76):

Ms Cook applied for the court to order that the matter be remitted to a different judge. I understand that neither of the other parties is opposing that course. Although I am very confident that the judge would conduct a rehearing completely fairly, I recognise that the mother is concerned that she may have reached conclusions about the veracity of the allegations. In addition, for practical reasons, there would be very grave difficulties enlisting the matter before the same judge in the immediate future and it is more likely that the reopened fact-finding hearing can take place more quickly if I direct that it be allocated to a s.9 family recorder.

Accordingly, the mother is granted permission to appeal against the judge’s dismissal of her application to reopen the justices’ findings made on 20 August 2015 and her refusal to terminate the instruction of the psychologist. The appeal is allowed and the matter remitted so that the fact-finding rehearing is listed before a s.9 recorder, with appropriate case management directions.