This is a follow-up post about an appeal in proceedings about child arrangements (contact between two young sisters and their father) heard at Portsmouth Family Court. The appeal was against decisions made further to a fact-finding hearing, which the mother claimed had not been conducted correctly by the district judge (DJ). The mother’s appeal was heard in February by a circuit judge, HHJ Levey. I attended the hearings and wrote about them as a legal blogger, although I couldn’t go into much detail because the case was still under consideration. The judgment, B v P  EWFC B18, is now here. The mother’s barrister (in the two recent hearings), Charlotte Proudman, has tweeted about it –
This is all topical, as impatience grows about the promised reviews and better practice in family court cases that involve allegations of domestic abuse, following the Harm report published in June 2020 (yes – getting on for two years now). Are such allegations still being minimised in family courts?
Unsurprisingly, the appeal succeeded. As a non-practising lawyer, I was pretty startled as the mother’s barristers described an ever-lengthening list of non-compliance with practice directions and guidance in the DJ’s hearing. However, it should be emphasised that although HHJ Levey has concluded that the earlier decisions cannot stand because of serious procedural irregularity, this does not necessarily mean there will be a different outcome on the findings, or on the welfare of the children. There will certainly be yet more delay. The children themselves were hardly mentioned in the hearings I attended, but it seems they live with their mother and contact arrangements with their father broke down in late 2020, and he has not seen the children since then. There were quite a few gaps in the information available to HHJ Levey from previous court records, and he said he wasn’t clear when contact stopped. If the parents want to continue to litigate, there will now be another hearing to test the parents’ respective allegations and then, eventually, a hearing about the children’s welfare.
- 2018: a child arrangements order was made that the children live with Ms B and have regular contact with Mr P.
- October 2019: Mr P applied to enforce a child arrangements order regarding the time he could spend with his children, as he claimed Ms B was not following its terms. Ms B responded by applying to vary the order, making claims of domestic abuse against Mr P.
- 2019 – 2020: a series of court hearings
- November 2020: a non-molestation order (injunction) was made against Mr P following complaints by Ms B.
- April 2021: DJ Miles decided a fact finding hearing was necessary, before decisions could be made about the children.
- August 2021: fact-finding hearing before DJ Miles. This is described by HHJ Levey – ‘At the hearing the judge heard evidence from the parents, M’s brother and a social worker. She had schedules of allegations from both parties. There was no ground rules hearing, and from the transcript, no consideration of special measures. The hearing was fully remote, taking place as it did within the Covid 19 pandemic. The appellant mother was represented, the respondent father was not. The submissions made on behalf of the mother did not address the procedural issues raised in this appeal. (i.e. the mother’s barrister in August didn’t address the procedural matters the mother later raised in this appeal) As far as I can tell, the judge was not referred to the need for a ground rules hearing, Part 3A of the FPR, practice directions 3AA or 12J; she was not referred to the definition of domestic abuse and she was not reminded of the decision in Re H-N’.
- October 2021: the mother gave notice of appeal and HHJ Levey gave directions a couple of weeks later. The case was listed for early December, but adjourned because there were no transcripts from the hearing before DJ Miles. (It emerged that full transcripts never did become available, but it seems there was sufficient to proceed with the appeal in February.)
- January 2022: this was the first hearing I attended. The papers from the previous proceedings hadn’t all been made available to the judge and an interpreter for the father hadn’t been arranged. In this hearing, the mother was represented by Suzanne Hargreaves, who was not the barrister she’d had in the fact-finding hearing. The matter was adjourned to February, on a date Ms Hargreaves wasn’t available. Dr Proudman appeared instead in February.
- February 2022: the hearing was spread over two sessions. At the end of the second hearing, HHJ Levey stated that he was reserving judgment and that he would publish it on BAILII (which happened on 31 March, when the court also sent me a copy).
Again, unsurprisingly, the judge was critical of the length of time the matter was taking (ongoing for 16 months, and now there is further delay, because of the faulty hearing last August).
What went wrong at the fact-finding hearing?
There were some rule changes in October 2021, but even back in August, Practice Directions 3AA and 12J were in operation, and the case of Re H-N had been widely reported in March 2021. (We wrote about it here and here.) Ms B had made allegations of abuse since 2019 and Mr P was made subject to a non-molestation order in 2020. This was the context for the fact finding hearing, that was conducted online.
The judgment sets out, and deals with, eight grounds for appeal (paras 43 – 73). In essence, this is what HHJ Levey decided went wrong:
- There was no Practice Direction 3AA ‘ground rules hearing’ and consideration was not given to providing special measures for Ms B, i.e. allowing her to turn off her camera. Both parties could see each other throughout. The court (i.e. the DJ) was under a duty to consider special measures (‘participation directions’), even though this had not been raised at the time by Ms B or her barrister (this duty has been clarified in a High Court case, Re N (A Child)  EWHC 3225). HHJ Levey concluded that the lack of these directions may have affected the way in which Ms B had given evidence, and he upheld the appeal on that ground alone, although he went on to consider the others.
- The DJ did not follow Practice Direction 12J, in that she did not apply the correct definitions of domestic abuse and coercive and controlling behaviour (CCB).
- She did not follow Re H-N, because she minimised the impact of the father’s behaviour on the mother and did not consider examples of his behaviour as a whole, and whether there was a pattern of CCB. Instead, it appears that she had made separate findings on each example given (finding some proved and others not). Some of these findings did not follow from/match the evidence and were therefore wrong.
- Findings were made that Ms B had breached the order. These allegations should have been put to her, to give her an opportunity to reply to them and because they weren’t, the findings were set aside.
While one can’t expect a party to know she may be classed as a vulnerable witness and be able to ask for assistance in giving her best evidence, it’s surprising that it didn’t occur to anyone else. My understanding from comments made by Mr P was that Ms B’s lawyers were publicly funded by legal aid, for which she would only have been eligible if she was complaining of abuse. To my mind, that would automatically suggest she was vulnerable, within the meaning of PD 3AA (and of course a large part of the subject matter of the hearing was her complaints of domestic abuse).
HHJ Levey said, at para 39, that the DJ:
‘also referred to a document lodged by counsel for the mother as to the law. I have not seen this document, so I do not know whether the judge was referred to Re H-N …, or the respective practice directions that I have set out in this judgment. There is no mention of either the Court of Appeal decision or the practice directions in the judgment, and so I can only assume that the judge was not referred to them’.
So, all rather mysterious. On the face of it, there’s no indication that the DJ or the original barrister were aware of the existence of the PDs or the Court of Appeal case.
How typical is this?
According to the Harm Report, such oversights were not uncommon before mid 2020, but the President subsequently commented in Re H-N that judges were generally, by that point in March 2021, taking a more modern approach to domestic abuse and CCB. The PDs were strengthened only a few weeks after this fact-finding hearing, following a great deal of publicity over the Domestic Abuse Act 2021. PD 3AA as it stood in August 2021 required the court to consider whether a party’s participation was likely to be lessened because they are vulnerable, having regard, for example, to the impact of any actual or perceived intimidation. This has been amended to the court now assuming that a person who is or is at risk of being, a victim of domestic abuse, their participation and evidence will be reduced by reason of vulnerability. Unfortunately, we are still aware that, anecdotally, special measures are not being routinely considered where a party comes within the description in the rules and PDs of being vulnerable.
What can be learnt from observing these hearings?
It took Dr Proudman two hours to argue all her submissions, although the judge had already been sent them in her skeleton argument. The duration was lengthened by every sentence being simultaneously translated by the very efficient interpreter, Ms Leconte. It then took Mr P about an hour to go through each item he disputed in the skeleton argument (also being translated). There were, for example, differences in the parties’ accounts of dates, whether or not certain comments were heard by others, money owed, whether the person who moved in to look after the children had been brought in by Ms B or was Mr P’s girlfriend etc. It seems that none of this was necessary for the appeal to succeed, because it was clear that ignoring PD 3AA was sufficient, although it is of course important that the failure to observe PD12J and Re H-N are also serious grounds for appeal, and Ms B’s barristers were right to raise all those.
However, I can’t see that going through all this with the parties present was a good use of court time. Ms B was unseen by the judge (or any of us) but Mr P seemed bemused by the length of time everything was taking. He kept having to arrange time off work. He wasn’t disputing anything about the way the fact finding hearing was held, apart from whether he looked Ms B in the eye (via cameras) at one point. Dr Proudman was working during her holiday, and Ms Leconte had rearranged her appointments to fit in. The judge, it seems, had read mountains of papers. I couldn’t help wondering why procedural errors like this can’t be dealt with administratively. It wasn’t Ms B’s or Mr P’s fault that the hearing was wrong – neither of them appear to have contributed to this catalogue of delay.
In order to establish that DJ Miles had minimised the effects of Mr P’s behaviour on Ms B, Dr Proudman went through the DJ’s individual findings in detail, which inevitably led to Mr P feeling obliged to explain or refute some allegations. At one point he said, ‘someone is being paid to make me look like a criminal’. No one had explained to Mr P that this appeal was all about what the DJ and some lawyers had done that was wrong, not about what he might or might not have done. I hope that the judge in the new fact-finding hearing will indeed be able to ‘step back’ and look at patterns of behaviour, because constantly reviving and repeating disputed facts from years ago is not going to help the future parenting of these children.
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