This post is about a new judgment from the Court of Appeal called : R (Children) [2018] EWCA Civ 198 (16 February 2018).

It is about what approach the family court should take in deciding the background facts to a case where a crime might have been committed, and how the sorts of questions that the family court should be asking might be very different to the sorts of questions asked by the criminal court dealing with the same events. The family court shouldn’t try and decide whether or not a crime has been committed, instead it should decide what happened and why, and what that means for keeping a child safe.

The Court of Appeal judges (Lady Justice Gloster, Lord Justice McFarlane and Lord Justice Hickinbottom) each gave their own separate judgment. The Court of Appeal tries not to do this, and usually issue only one main judgment with the other judges simply agreeing or making one or two short points of their own to emphasise something. In this case however, the three judges couldn’t agree on several things, so have each explained why that was. They did all agree on the outcome however : in this case they all agreed that the trial judge had got things so wrong that the trial had to be run again from scratch.

The original judge, Mrs Justice Theis, was asked to decide what had happened when the mother of the children had been killed. It was not in dispute that the mother had died from a knife wound to the neck inflicted by the father when the children were present, but in a criminal trial he had argued that he used only reasonable force to protect himself and the children in response to an attack from the mother. He was acquitted. This means that the jury decided they could not be sure he was guilty but it doesn’t necessarily mean that they thought he was innocent. The judge in the family court therefore had to look at what had happened for herself. In deciding what had happened the judge got drawn into using ideas and language from criminal law and decided that the father had ‘used unreasonable force and unlawfully killed the mother’.

The Court of Appeal thought that was wrong. In fact, the Court of Appeal ‘questioned whether the criminal law should have any place in a fact-finding determination made in the Family Court’ and ‘all parties before the court readily accepted that the structure and substance of criminal law should not be applied in the Family Court’.

Macfarlane LJ explained the conclusions of the court at pa 82) :

a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court;

b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes open to such risks as the factual determination may have established;

c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court;

d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.

As we explain below, this was the majority view, but Gloster LJ didn’t quite agree with all aspects of it.

The disagreements

McFarlane LJ and Gloster LJ disagreed about the extent to which the court is required to make findings as to the circumstances of a killing such as occurred in this case, and as to the reasonableness of the conduct of the surviving parent.

Hickinbottom summarised the dispute this way :

McFarlane LJ considers that criminal law concepts, such as the elements that must be established to prove guilt or disprove a defence, have no place (“neither relevance or function”) in family proceedings; whereas Gloster LJ considers that it is unavoidable that family court judges apply such criminal law concepts to fact-finding trials. On this issue, I very firmly prefer the view of McFarlane LJ. With respect to the contrary view of Gloster LJ, I agree with him that it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.

Hickinbottom LJ thought this was a difference of degree, saying that :

In this case, there is no doubt that father killed mother; although the circumstances in which that death occurred are controversial. Those circumstances may be relevant to several aspects of the future welfare of the children, e.g. most obviously, whether father poses a risk of harming the children, physically, psychologically or emotionally. Given that they will inevitably, in time, come to learn that their father killed their mother, it may also be in the children’s best interests to know something of the circumstances in which the killing occurred; although I agree with Gloster LJ to the extent that she says that it may be more usually important for children who have been abused to know who abused them when they were young,

McFarlane had thought that these issues about the detail of the killing would be information that the children might well need to know in due course, whilst Gloster LJ disagreed. She thought that a trial judge would need to decide whether this was so (pa 119):

Thus, the judge at the retrial will, in my view, have to give very careful consideration as to whether it is indeed necessary or appropriate in all the circumstances, in order to decide upon the best welfare outcome for the children, for any one or more of the killing issues to be determined. Without in any way being prescriptive, I would see this as potentially involving consideration of the following sub-issues:

i) whether there is sufficient specific psychiatric or other evidence to support any contention by the local authority or the guardian (as presented in argument on this appeal) that these children “need to know” the view reached by a family judge on the killing issues, notwithstanding the passage of time and the prior acquittal of their father in the criminal courts;

ii) whether the concern to protect the children from any possible future violent conduct or emotional harm that might be perpetrated by the father requires the determination of the killing issues, notwithstanding the fact that the children had been in his care for some considerable time prior to the death of their mother apparently without mishap.

iii) whether, given the fact that the appellant has already given extensive evidence, and been cross-examined and acquitted in the criminal trial, any subsequent determination of the killing issues in the context of family welfare proceedings which necessarily revisits the same (and possible additional) evidence a considerable time after the relevant events could afford him or his children a fair trial under Article 6 of their rights to family life; in this context I have particular regard to the potential for unfairness in a cross-examination of the appellant based on the transcript of his evidence in the criminal trial;

iv) whether it is proportionate in all the circumstances effectively to retry or try the appellant in relation to the killing issues (I use the term “try” as the appellant had not been accused in the criminal proceedings of premeditated murder); and

v) whether such proceedings would, in context, be an abuse of process or achieve little other than a second judicial, as opposed to a jury, view of the evidence.

McFarlane and Hickinbottom LJJ thought it was best to leave the question of what was and was not necessary to decide up to the trial judge and not to try and set a list of considerations.

Fair trial

The second and striking aspect of the appeal was that the father’s counsel Ms Venters QC had complained that she and her team were simply not given a fair opportunity to prepare the case before trial, meaning that they were just not on top of the case when things started. The court of appeal accepted these arguments (MacFarlane LJ, 73-4):

An advocate as experienced and robust as Miss Venters deserves to be taken seriously when she tells an appellate court that, in consequence of the difficulties that she has explained, she ‘simply did not have a grip on the evidence’ and that, despite giving a clear and specific account of her professional difficulties, her client’s case in that regard was not heard. When the factual finding that the court has made is of the magnitude and, in terms of its impact in the family proceedings and elsewhere, importance as the one reached by the judge here, the need to take what is said seriously is particularly acute.

…it seems likely to me that the timetable imposed by the court on the father’s team was, in the circumstances, untenable.

What does the judgment mean in practice?

All of this means that those involved in family court cases are going to need to give quite careful thought at an early stage to what facts the court really needs to decide in order to make decisions for children, and how the findings sought should be expressed in writing. The issue is going to be whether something has happened that might have an impact on the children in future (because they have been harmed, have seen harm or might be harmed in a similar way in future) and not on whether it is more likely than not that a crime has been committed.

A decision of the Court of Appeal is binding on lower courts, but where there is disagreement the majority decision must be followed. There are still some areas of ambiguity, but unless this case goes on further appeal to the Supreme Court, these are likely to be argued out in front of the trial judge who will have to decide what approach to adopt, depending on the circumstances.

Pic courtesy of Mark Strozier on Flickr (Creative Commons) – thanks!