What does AA v BB tell us about the treatment of domestic abuse since Re H-N?
Since the Court of Appeal judgment in Re H-N [2021] EWCA Civ 448 which was handed down earlier this year, we’re starting to see more and more published cases concerning domestic abuse in private law children proceedings.
I’m a big fan of that: one year on since the publication of the Harm Report, the treatment of domestic abuse in the family courts remains under the spotlight. It’s encouraging to see this apparent push by judges of all levels of seniority to ‘show their working out’.
Done well (and see Lucy Reed’s blog post here for an example of not doing it well!) this increased transparency has the potential to build trust between victims of domestic abuse and the family justice system, and to break down the perception of the ‘secret’ family court.
We now have another judgment to add to the growing collection: AA v BB [2021] EWHC 1822.
Facts
This case concerned two children, aged 12 and 3. The parents separated in 2019 and court proceedings began in January 2020. They reconciled briefly in April 2020, but the marriage broke down again in August 2020 and so the court proceedings were revived.
A brief timeline of the proceedings:
- January 2020 –the parties made applications for child arrangements orders and specific issue orders.
- 28 August 2020 – given that the parties both made allegations of abuse against the other, the parties were directed to file schedules limited to 5 allegations each. A schedule is effectively a table which sets out what each party alleges about the other and what the other party’s responses are to the allegations.
(Note: schedules have become the subject of some criticism following the decisions in F v M and Re H-N. In summary, both judgments raised concerns that schedules artificially restrict parties from advancing allegations that are relevant to the court’s decision and make it difficult to establish a pattern of behaviour.)
- October 2020 – First Hearing Dispute Resolution Appointment (the first hearing in private children law proceedings). The parties were directed to prepare witness statements.
(Note: it is quite usual for parties to be directed to prepare witness statements in support of their schedules; usually, the statements are limited to supplementing each allegation and setting out the context of what happened. Schedules are not evidence in and of themselves; they are just used to give the court a quick picture of the allegations. The evidence itself can be found in the statements).
- From December 2020 to the fact-finding hearing in February 2021, there were various hearings to deal with contact and financial matters. Different judges heard the case on each occasion.
(Note: this is not surprising; any family practitioner will tell you that with crowded lists and limited judicial availability, securing the same judge throughout proceedings is often a pipe dream.)
At the listed fact-finding hearing in February 2021 before Recorder Glancy QC, things got off to an unhelpful start: due to the judge having to deal with other matters, the hearing didn’t start until 2pm on day 1. Family justice practitioners will tell you this is par for the course, with judges optimistically squashing ‘straightforward’ directions hearings in alongside contested final hearings and fact-finds. This meant a quarter of the listed hearing time was already lost.
On top of that, a number of preliminary issues were raised by father’s barrister about the evidence mother wanted to rely on, namely a statement from her, the children’s nanny and from the children’s maternal grandmother. Father’s barrister submitted that the statements went beyond the five-allegation limit on the parties’ schedules, and therefore invited the judge to exclude all the surplus evidence being relied upon.
The decision under appeal
Mother’s statement did go well beyond the allegations in her schedule and included allegations that:
- Father’s abusive behaviour towards her was constant and from 2019, he was more violent and abusive to her and the children;
- The allegation of forced sex she referred to in her schedule was not an isolated incident;
- Maternal grandmother (her mother) witnessed several incidents when the older child had been hit by the father;
- The child had told his therapist about these incidents;
- Father was forced to resign from his job to avoid being disciplined for bullying at work;
- Father stole her passport and those of the children so they were unable to travel;
- Father had been controlling of their money.
Mother also wanted to rely on counsel’s opinion (a letter of advice from a barrister) who had been instructed by father around a proposed claim for constructive dismissal from work. She submitted that this advice demonstrated that father bullied people at work and was “similar fact” evidence i.e. evidence that he had a pattern of behaving like this. She also wanted to rely on letters from professionals who had been treating her son, setting out the allegations he made against the father and the impact on his mental health.
Recorder Glancy QC considered large chunks of mother’s evidence to be irrelevant or inadmissible. While he didn’t go so far as to say that mother could only rely on evidence which related to allegations in the schedule (as this would be “a little on the narrow side”), he was concerned that the hearing not become too lengthy. He then directed that sections of mother’s evidence be excluded, including her allegations that father’s abusive behaviour worsened in 2019; her allegation that when father cajoled or pressured her into having sex, it was “not the first time”; and her statement referring to “constant” abuse of the older child.
The judge allowed permission for mother to rely on the statement from a nanny, which alleged that father was aggressive and humiliating towards mother and the older child. He also granted mother permission to rely on a statement from maternal grandmother (albeit he considered some of the contents of the latter statement objectionable either because they were new or irrelevant). The judge excluded the evidence from the older children’s treating professionals and counsel’s opinion about father’s job.
The appeal
Practitioners will know that it is very tricky indeed to persuade an appeal court to interfere with a case management decision made by a lower court. Mrs Justice Judd in this case referred to the remarks of Sir James Munby P (as he then was) in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5:
“a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task…” [emphasis added]
Nonetheless, Mrs Justice Judd did allow the appeal.
This was on the basis that she considered that the allegations which fell outside the schedule were not inadmissible or irrelevant. Mrs Justice Judd referred, in particular, to the allegations that father had hit the older child several times; forced mother to have sex on several occasions; that he treated the older child in a humiliating manner, and that he was a bully.
The judge noted that sometimes, a judge may well refuse to admit relevant evidence at the eleventh hour. This might be because it isn’t that significant looking at the whole canvas of evidence, or perhaps it might lead to the hearing being adjourned and harmful delay to the child could ensue. However, in this case, the allegations were not only significant, but the hearing was adjourned anyway because of a lack of court time. This meant that there was the time to consider the further evidence being relied upon before the adjourned fact-finding hearing.
Mrs Justice Judd allowed the appeal and set aside Recorder Glancy QC’s directions in respect of the filing of evidence. She directed that mother file a statement setting out her allegations, and father file a response, which should also include any allegations he makes against the mother.
A pre-trial review was scheduled (what it says on the tin: a hearing where the court checks that all ducks are in a row ahead of the fact-finding hearing), and the trial judge could consider the statements then, and determine which specific allegations are to be determined at the fact-finding hearing. At the same time, the trial judge can also consider the applications by mother to rely on evidence from her mother, the nanny, treating professionals, and the evidence about father’s job.
Thoughts
This judgment sets out the tension at the heart of Re H-N which judges and practitioners are going to have to grapple with more and more: that between allowing victims of domestic abuse to raise allegations and not to be unduly limited in their ability to do so, lest this paint an inaccurate and artificial picture of the abusive relationship; but also case managing a case proportionately because the parties simply cannot throw ‘everything and the kitchen sink; into the proceedings. Otherwise, we would end up with extremely lengthy fact-finding hearings which the court system does not have the infrastructure to manage.
Judd J refers to the comments of the President of the Family Division in ‘The Road Ahead’, guidance he issued in 2020:
“If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear…”
It is difficult to know how these comments can, practically, be reconciled with the observations in Re H-N. While the Court of Appeal in Re H-N reiterated that “It is the responsibility of the individual judge or bench of magistrates in each case to set a proportionate timetable and to maintain control of the court process where it has been determined that a fact-finding hearing is necessary”, this is easier said than done.
The post Re H-N landscape, I suspect, will involve judges being increasingly cautious about case managing robustly for fear of opening themselves up to appeal because they limited parties from raising relevant allegations.
Watch this space.
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