This is a post from Sophie Smith-Holland, who tweets as @SSmithHolland.
The question of how the family court deals with domestic abuse has had a huge amount of public and media attention recently. Concerns have been raised that the system is placing children and victims at unacceptable risk and that there is a ‘culture of contact at all costs’. Campaigners, including survivors and MPs, have described a disconnect between Practice Directions / best practice guidelines and what actually happens in practice at courts around the country. A government led review and ‘call for evidence‘ (limited to ‘private’ law cases) is still underway. A ‘progress update‘ in October confirmed that the original 3 month time-frame has been extended to an unspecified date ‘in the coming months’.
A ‘snapshot’ look at some recent published judgments featuring domestic abuse seems useful, looking at decisions made and how they were reached. We link to earlier blogs from the series at the foot of this post.
AB v XY [2019] EWHC 1468 (Fam) (07 June 2019)
Background
In this case, Ms Y applied for a non-molestation order (NMO) and occupation order (OO) against her husband, Mr B. A non-molestation order is a protective order preventing someone from “molesting” someone else (molesting is wide ranging and covers things like pestering and an order may even prohibit any communication at all). An occupation order is an order that regulates who may live in/enter the home. I refer to NMOs and OOs collectively in this post as the “Family Law Act orders” as the power to make each of them comes from the Family Law Act 1996.
Strangely, there had also been a dispute raised in the proceedings about whether the parties were actually married. Mr B said the marriage certificate was a forgery. The judge thought this point needed deciding. You might think that this was relevant because in order to get a Family Law Act order against someone you have to be “associated” with them and one of the ways you can be associated with someone is through marriage. However, it was clear from the transcript that it was not a relevant matter from a legal perspective (because the couple would be “associated” simply by living together as a couple). In fact it was an issue of fact, giving rise to findings on credibility, which could be imported into the main application. The judge directed there be a hearing about this issue (a preliminary issue hearing) and gave the parties two working days to prepare statements from anyone who could give evidence about whether the parties were married or not. The judge also gave a date for a contested hearing to take place, more than a month later, to decide whether the Family Law Act orders should be made.
However, at the preliminary issue hearing, the judge heard evidence and actually went on to make an occupation order and non-molestation order against Mr B. He also made the following findings:
i) The [husband] did not tell the truth on a number of occasions during the hearing and was a serial liar ii) The parties were married in Jordan on 9 June 2010 and thereafter lived as husband and wife iii) The [husband] has a beneficial interest in the family home, despite legal title to the property being held by CB and DB, the [husband’s] children from a previous relationship iv) By virtue of his beneficial interest in the family home, the [husband] was entitled to occupy the family home v) The family home is and has been the home of the parties. Further, the judge made a finding that the husband had been abusive to the wife (in accordance with her allegations) and had put her out of the house without notice and sought to defeat any claim she might have over the house by transferring the property into the names of his children.
It is important to note that Mr B was unrepresented at the hearing.
The appeal
Mr B sought permission to appeal. The appeal itself came before the court some 7 months after the original order was made. During that time, due to the orders, Ms Y had resumed occupation of the property and Mr B had been ‘sofa-surfing’ at the homes of friends and family, as well as spending periods in hospital because of illness.
The thrust of Mr B’s grounds of appeal were that: the hearing had been listed as a preliminary issue hearing only; he had only 2 working days to prepare; the judge had gone beyond the determination of the preliminary issue; and didn’t hear evidence on Ms Y’s allegations. It was argued that these represented serious procedural irregularities in the proceedings and the proceedings were unjust as a result. Further, the time pressure made the hearing unfair; Ms Y relied on a book in Arabic with no translated copy available; the finding in respect of Mr B having a beneficial interest in the property went beyond the intended scope of the hearing; and the judge was wrong to make such a finding without notice to the two co-owners. It was also argued that the judge was “wrong” to find that the parties were married in Jordan on 9 June 2010; had failed to give sufficient weight to (or refer in his judgment to) the “facts” relevant to the marriage ceremony or the certificate, or that the Jordanian embassy had authenticated the marriage certificate; or that because Mr B had lied about Ms Y being his lodger, it therefore followed that he was lying about everything else. Importantly too, the judge failed to look at the relevant statutory tests before making the Family Law Act orders.
It was accepted on behalf of Ms Y that 4 grounds should be allowed and therefore there would need to be a rehearing, but she said that permission should not be given to argue the remaining grounds. She argued that:
- Mr B did not raise any objection to the hearing proceeding or seek an adjournment or request any additional time
- Mr B had sufficient time to prepare and address the issues
- the hearing was not conducted any pressure of time such to make it unfair
- the decisions were reached after a full consideration of the written and oral evidence
- the Jordanian family book was one part of the evidence and the judge was entitled to rely on it
- the ‘fake marriage certificate analysis’ was also put before the judge by the husband and so must have been in his mind and was explored in evidence and submissions.
- the judge was entitled to reach the conclusion that the Jordanian embassy had certified the marriage certificate copy as genuine and her barrister set out an extensive list (some 19 items) of the evidence that was before the judge which he relied upon in reaching the conclusion that the parties were married.
Obtaining transcripts for appeals
The High Court judge hearing the appeal set out a chronology of what had happened since the preliminary issue hearing. The long delay in bringing the appeal was mainly due to delay in obtaining a transcript from the hearing. Whilst not strictly relevant to this blog post, it is useful to set out his guidance to practitioners:
I would observe that it will very often be the case that no written judgment is handed down and that a transcript will be required; with litigants in person there will very often be no note of the judgment and obtaining a transcript (particularly if one is sought at public expense) will lead to lengthy delay. However the 21 day time limit still applies and it is imperative that those instructed to advise on appeals pull out all the stops to obtain the material that they need to make a decision. In particular, in a case such as this requesting a note of the judgment from counsel who was present seems to me to be mandatory. It is part and parcel of counsel’s duty in attending a trial to take a note of the judgment. The consequence of the delay in filing the appeal has not been great insofar as the respondent is concerned. She has been in occupation of the property, whilst the husband has had to improvise, but the net result is the passing of 8 months.
The appeal decision
The judge applied established law that the appellate courts should not interfere on appeal with findings of fact unless compelled to do so by the identification of clear and substantial errors in the process of the evaluation of the evidence and the drawing of conclusions of fact from that evidence.
He examined the transcripts from the hearings and commented:
- there were a number of times during which the judge had referred to the limited amount of time available and the need to hurry up
- the third parties who had prepared sworn statements were not called to give evidence
- the transcribed judgment ran to a little over 3 pages
- the judge had plainly found Mr B to be a dishonest witness
- the judge had concluded that a wedding ceremony had taken place but had not considered any of the evidence relating to the ceremony itself, or the criticisms that the husband had made of the marriage certificate.
He reached the following conclusions, addressing the grounds of appeal:
- the allegations of abuse made by the wife against the husband were not the subject of any cross examination
- there was no exploration of the circumstances in which the wife had left the house, still less any exploration of the circumstances in which the property had been transferred into the names of the respondent’s children some 3 years earlier and whether the husband retained a beneficial interest in the property
- it was undoubtedly the case that the findings made by the learned judge went far beyond those which were listed for determination and were made without any evidence preparation, exploration of the evidence or detailed submissions
- the findings regarding credibility were plainly to be determinative of the parties such that they would be disbelieved on anything else unless there was corroboration – dealing with credibility in such a binary way is contrary to the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.
- several of the decisions were reached without necessary procedural or evidential foundations suggestive that the decision-making process more generally was flawed; which impacted on the findings made
- as a matter of form it was hard to imagine that an objective observer would have considered that justice had been seen to be done to the husband in those circumstances.
The judge’s overarching conclusions were that the hearing was procedurally irregular, with the outcome consequently unjust, and that the findings should be set aside. He did not consider that the trial Judge was wrong to admit the Jordanian family book into evidence and take it into consideration nor to conclude that the Jordanian Embassy had authenticated the marriage certificate. However, the conclusion that the marriage had taken place could not stand, as it had not been reached after a procedurally appropriate pathway to trial and adequate exploration of the issues.
The appeal was therefore allowed, the findings set aside and the matter remitted for consideration by the Designated Family Judge at Chelmsford Family Court.
The non molestation and occupation orders were set aside on the basis that the status quo that had existed over the last 7 months should nevertheless endure until matters could be further considered.
Comment
Practice Direction 12J does not strictly apply to Family Law Act 1996 proceedings, as they are not proceedings in which a question arises about living and/or contact arrangements for children. However, some general principles from it are clearly relevant e.g. the need to give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly.
It seems no consideration was given to what evidence was required in order to determine the existence of controlling /coercive/ threatening/ abusive behaviour, and ensure the issues were tried fairly (though directions were given for filing of simultaneous evidence on the marriage certificate issue). No schedule of allegations setting out in tabular form exactly what Ms Y was complaining of, or alleging, or Mr B’s response to those seems to have been provided for. It looks instead as if the only source of information before the original court was Ms Y’s initial statement, provided on an emergency basis. No apparent directions for written statements detailing the allegations and responses they relied on; obtaining any necessary documents from third parties such as the police, health services or domestic abuse support services; or consideration of any oral evidence required from third parties with directions for filing of written statements. The court clearly did not have any of the relevant information before it.
In my view, it is hard to imagine a worse example of due process not being followed: a litigant in person being expected to deal with issues outside of the scope of what had been planned; under time-pressure; having prepared no written evidence; expected to challenge a case against him that he didn’t know the extent of; and with no opportunity to put forward his response either in examination in chief, or cross-examination (he was apparently not even prompted to cross-examine by anyone).
The impact of the court’s failures were not insignificant either. The orders had been in place for 7 months by the time of Mr B’s appeal. Notwithstanding the success of his appeal, with discharge of the Family Law Act orders, the court still determined that the status quo should continue until further consideration – effectively depriving Mr B of his home for over 7 months on the basis of orders that were ‘wrong’.
Previous blogs in this ‘snapshot’ series:
Part 1 – A Lancastrian Council v M [2019] EWFC B6 (07 March 2019)
Part 2 – A (A Child) [2019] EWFC B16 (12 March 2019)
Part 3 – O and Y (Children: Care Order) [2019] EWFC B22 (24 May 2019)
Part 4 – A Child (Threshold: Inflicted Injury and Domestic Abuse) [2019] EWHC 1511 (Fam) (21 May 2019)
Part 5 – SD v AFH (Appeal: Coercive and controlling behaviour: Inference or speculation) [2019] EWHC 1513 (Fam) (13 June 2019)
Part 6 – A Local Authority v C [2019] EWHC 1782 (Fam) (12 April 2019)
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