The first line in K v K [2022] EWCA Civ 468 states: ‘This judgment is intended to provide general guidance on the proper approach to fact-finding hearings in private family proceedings following this court’s decision in Re H-N‘ (published here and which we wrote on here).

That is one key element of the judgment, but a second very important feature of this case is that the Court of Appeal also states, at paras 26-27:

It was unfortunate that the parties in this case did not take advantage of the MIAM. The twins had been enjoying alternate weekend stays with their father for two years following the parents’ separation, despite some problems in late 2019. This contact only ceased due to a sequence of practical impediments that arose after the father sold his car. At that time in June 2019, the mother was prepared to swap weekends once her own arrangements could be altered and, even at the time of her C1A, she agreed to unsupervised contact. It is clear from the June 2019 WhatsApp that, by then, the father was firmly focussed upon resolving the apparent stand-off by applying to the court. With hindsight, the issues between the parties at that stage, which were seemingly entirely logistical rather than an objection in principle to the twins staying overnight, could have been resolved out of court and, probably most effectively, through mediation.’

It may seem bizarre that a case which involves the application of the H-N approach to domestic abuse allegations is also one in which it is suggested that a MIAM (a mediation information advice meeting) may have diverted to mediation. Normally, if a MIAM reveals possible abuse, the applicant is exempt from the rest of that preliminary process, because the matter will not be suitable for mediation (and a fact-finding exercise may be required). However, the descriptions by the Court of Appeal about how this case spiralled do suggest that contact arrangements could have continued safely without Mrs K having concerns for the children’s welfare, if only Mr K hadn’t lost patience and rushed off to court. Unfortunately, his application resulted in the children not seeing him for more than two years. This appeal was against a fact-finding hearing conducted by District Judge Capon in August 2020.

The Court of Appeal’s judgment was given by the Master of the Rolls (head of the Civil Division of the Court of Appeal), who sat with the President of the Family Division, Sir Andrew McFarlane, and Lady Justice King.

Applying Re H-N

When is a fact finding hearing required?

The Court of Appeal emphasise that a judge considering whether to order a fact-finding hearing needs to identify the real issues that arise about the child’s welfare of the child. Reference is made to paras 8 and 139 in Re H-N. This simply follows para 14 of Practice Direction 12J, which says that the court ‘must ascertain at the earliest opportunity … whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child‘ (our emphasis). Fact-finding is only needed if the allegations are likely to matter when the court is being asked to decide about the children’s welfare. In other words, if there are issues about abuse, but these don’t affect the decision to be made about the child, then there is no point spending time on proving them (or not).

At para 41, the Court sets out the relevant passages from Re H-N, in the following sequence (all the para no.s are from Re H-N):

8. Not every case requires a fact-finding hearing even where domestic abuse is alleged. As we emphasise later, it is of critical importance to identify at an early stage the real issue in the case in particular with regard to the welfare of the child before a court is able to assess if, a fact-finding hearing is necessary and if so, what form it should take.

139. Domestic abuse is often rightly described as pernicious. In recent years, the greatly improved understanding both of the various forms of abuse, and also of the devastating impact it has upon the victims and any children of the family, described in the main section of this judgment, have been most significant and positive developments. The modern approach and understanding is reflected in the ‘General principles’ section of PD12J(4). As discussed at paragraphs 36–41 above that does not, however, mean that in every case where there is an allegation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing, so much is clear from the detailed guidance set out in paragraphs 16–20 of PD12J and, in particular, at paragraph 17:

“(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court;

(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.”

37. [suggesting the correct approach is as follows]

i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).

ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.

iii) Careful consideration must be given to PD12J.17 as to whether it is ‘necessary’ to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.

iv) Under PD12J.17(h) the court has to consider whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance in “the Road Ahead”.

What had happened in K v K was that Mrs K hadn’t raised serious allegations about Mr K but, shortly before a FHDRA (first hearing dispute resolution appointment) in February 2020, a safeguarding letter from Cafcass did. The District Judge ordered a fact-finding hearing, without identifying what the issues were between the parents about the children’s welfare, and without giving the mother time to decide (assisted by her lawyer) what findings she thought the court should make that were ‘likely to be relevant to any decision of the court relating to the welfare of the child’. Reading the new judgment, it seems she hadn’t tried to prevent contact between the children and their father, and there’s no indication that she put forward any evidence of risk of harm to them. What began as logistical problems about contact arrangements mushroomed into arguments before the court about the parents’ past relationship. Somehow, this had been allowed to happen, even though the mother has consistently said she agreed to Mr K having unsupervised contact with the children (twins now aged 9).

Coercive and controlling behaviour

At para 6, the Court says: ‘The mother had agreed to unsupervised contact and did not, at that stage [the FHDRA in February 2020], see the alleged rape or generalised allegations of controlling behaviour, bullying and physical abuse of the children as central to the resolution of the issues between them.’

The Court emphasised that the main things to be considered in deciding whether to order a fact-finding hearing are:

  • (a) the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order,
  • (b) that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child,
  • (c) whether fact-finding is necessary or whether other evidence suffices, and
  • (d) whether fact-finding is proportionate.

The Court expressed concern that a perception had formed that Re H-N created a requirement that, in every case in which allegations of domestic abuse are made, the court should conduct a fact-finding exercise with a detailed analysis of each specific allegation. The Court of Appeal reiterated that the court’s duty is limited to determining factual disputes that are likely to be relevant to deciding how to make a child arrangements order. Although Mrs K had made a specific allegation that Mr K had controlled her, when they were together, by making her feel that she could only cope if he was with her, there was no general assertion of coercive and controlling behaviour (CCB).

The court order by the District Judge had recorded an instance of one WhatsApp message, since the relationship ended, as ‘an example’ of bullying, but Mrs K had not made any allegations of a pattern of CCB and the judge had not actually made any finding about bullying, of which the Whatsapp message he said was an example. The Court of Appeal concluded that the findings regarding the most serious allegations (rape of Mrs K and physical violence toward the children) were unsafe, and the fact-finding judgment was set aside. The case was remitted to a Circuit Judge for a decision to be made as to whether a fresh fact-finding hearing was required in light of the correct principles, but the Court stressed that the parties should consider whether there was room for compromise in the best interests of their children. In other words, the Court of Appeal thought arrangements could now possibly be negotiated, without the need for a re-hearing of the fact finding.

Early resolution through a MIAM or at the FHDRA

What is different about this case from those in Re H-N is that the resident parent (mother) had not objected to contact because of the father’s historic or recent behaviour; he was being scrutnised only because of the way the court was interpreting complaints she had made years ago. If someone had explained to Mr and Mrs K that what had gone wrong between the two of them in the past was only relevant to child arrangements orders insofar as those matters now affect Mr K’s parenting and his relationship with his children, then delays for fact finding could have been avoided, and a referral to mediation may have resolved matters.

The Court of Appeal observed that the District Judge had failed to use the FHDRA to ensure compliance with the requirement to attend a MIAM. A party can avoid this requirement by saying the case is urgent and that they need a without notice hearing. Such assertions should be checked either at or before the FHDRA under rule 3.10(1), but this didn’t happen. In fact, the case was not being dealt with as urgent and therefore the MIAM exemption that the father had claimed didn’t apply. The judgment says, at para 35:

‘For the statutory MIAM requirement to be effective, it must be enforced. The father ought to have been required to engage with the MIAM process.’

In a third point of interest in this judgment, the Court also noted that the Cafcass report had listed the findings made against Mr K as allegations of:

  • 1. Rape – proven on balance of probabilities
  • 2. Verbal Abuse/Bullying – proven
  • 3. Control – proven
  • 4. Anger/manipulation towards the children – proven on balance of probabilities
  • 5. Physical abuse towards the children – proven

This list did not reflect the findings accurately, said the appeal court, and ’emits a neon light in an erroneous and unjustified manner’ [para 85].

Comment

District Judge Capon’s decision to hold a fact-finding hearing wasn’t a result of any post-Re H-N perception the Court of Appeal feared had arisen, because it was made back in February 2020, before Re H-N was heard. However, the District Judge had strayed from PD12J which requires fact finding only when appropriate, necessary and proportionate. Amidst a good deal of evidence that fact-finding hearings are not always held when they should be, this appeal is a reminder that a blanket approach either way is not right. These children’s welfare and their long-term relationship with their father may have suffered irreparably.

At the Family Justice Council Bridget Lindley lecture and annual conference, held last week, several delegates criticised the C100 and court forms that encourage parties to enumerate faults and problems that had led to the breakdown of relationships, without clarifying that the only reason the court needs this information is if it has an impact on the children. In this context, one can’t blame Mrs K for reviving some of the worst aspects of Mr K’s behaviour, even though she was willing to be relatively flexible about contact. An older child in the family had stopped seeing Mr K of her own volition, so this appears to be a family where the children sometimes have a say, rather than being forced into one position or another by adults. Mr K’s accusation (in his application) of ‘parental alienation’ certainly backfired.

There is a summary of some parts of the FJC conference here and you can read the lecture, given by Helen Adam, here. Despite all the efforts by speakers at that event, and even a couple of questions by a House of Lords Select Committee about MIAMs, it’s just been reported on Family Law Week that use of MIAMs has been decreasing.

Having recently sat through an appeal against a fact-finding hearing, B v P, which I wrote about here, I considered the differences and similarities between these two cases. In B v P, the District Judge had decided a fact-finding hearing was necessary and, in hindsight, one can see why: Ms B’s barrister in the appeal argued strongly about the impact on those children of witnessing abuse. Presumably Ms B had explicitly expressed these concerns and the facts needed to be determined, so that a welfare decision on that impact could be made. Unfortunately, that hearing was conducted wrongly, the impact on the children was overlooked, and the whole process has to be gone through again. In both cases, the parties seem to have been disadvantaged by gaps in their knowledge of family court processes. Ms B and Mr P did not know she could have turned her camera off, and possibly have given better quality evidence back last August. Mr and Mrs K did not know that arguing with each other in August 2020 about the past was not going to resolve future arrangements, nor that their views about actual relevance of behaviour should have been sought. Also, in both cases. there appear to have been a number of findings at District Judge level that didn’t stack up with the evidence. All this, despite Ms B and Mrs K being legally represented.

A recently published Safe Lives report indicates that lawyers are not always fully aware of these types of gaps in their clients’ understanding. The report focuses on failures to understand the nature and impact of abuse on parents and children, a serious problem. However, it seems from K v K that some lawyers, Cafcass reporters and judges would also benefit from a more nuanced understanding of why this matters. As one practitioner suggested at the FJC conference, a better way to begin court forms might be a question such as ‘what is it that your are worried about for your children?’ so that children’s welfare is explicitly the starting point for the application, instead of parents’ complaints.

In the meantime, I don’t envy practitioners who are trying to navigate these issues, as there seem to be such huge variations amongst different courts’ decisions on the necessity for fact-finding. The emphasis now placed by the Court of Appeal on the relevance and effect of disputed facts was expressed simply at para 45: ‘without in anyway resiling from what was said at [139] of Re H-N about the pernicious nature of domestic abuse, fact-finding is only needed if the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare …’ Simple to say, but probably not always simple to apply.

Image: Arrows. Dean Hochman. Creative Commons at flickr