This is a guest post from solicitor Jeremy Ford. Jeremy is a partner, mediator and children’s arbitrator at Cambridge Family Law Practice LLP. He tweets as @headofroy. It was originally published on LinkedIn.
Sir Andrew McFarlane, the president of the family division, Lady Justice King and Lord Justice Holroyde (with extensive experience in criminal matters) have recently heard four linked appeals related to family proceedings involving the welfare of children. [See other Transparency Project posts on these appeals here]
It is anticipated that the Court of Appeal will give general guidance on the approach taken by the family court in cases in which domestic abuse is alleged.
My concern is that whatever the Court of Appeal says, the fundamental issue is time. Time for the court to consider the evidence, time to marshall the evidence, time to appropriately hear the matters in dispute, time to make findings, time to give judgment, time to list any fact finding hearing swiftly, time to consider interim contact.
Judges, as well as litigants, may find themselves quoting Samuel L. Jackson in the movie Changing Lanes, “I need you to give my time back to me. Can you give me back my time? Can you give my time back to me? Huh? Can you?”
The answer is no. Given the awful delays in the family justice system as a result of an avalanche of applications, legal aid cuts, court closures and the pandemic I worry that the Court of Appeal is going to be hampered in effecting the obvious change that is required.
The purpose of PD12J is to protect children and adults from the consequences of harmful behaviour.
The reasons that PD12J and its application is hit and miss is because:
- allegations are not case managed at the earliest opportunity;
- Cafcass is often ordered to report prior to statements being filed;
- there is insufficient time at directions hearings for the court to consider the evidence and decide what is relevant and must be determined, let alone the time to deal with interim child arrangements;
- fact finding hearings take too long to list.
PD12J
The application of PD12J on the family court is mandatory. Yet, there are countless experiences amongst the legal profession of PD12J being utilised as a straitjacket or just ignored/minimised.
In Re A (A child) [2015] EWCA Civ 486 at [§48-59], McFarlane LJ referred to the ‘requirement’ of the court to consider and follow PD12J in a case involving allegations of domestic abuse: “Any court dealing with a case where domestic violence or abuse is established is required to afford appropriate weight to such findings in accordance with the Re L decision and to conduct a risk assessment in accordance with PD12J, paras 35 to 37.”
The word relevance is extremely important in the application of PD12J. ie. would a finding be relevant to the welfare decision that is to be made?
The President in V (A Child) [2015] EWCA Civ 274 said this at [§34-36 and §46]:
“There is a danger, I fear, that in any case where the label “domestic abuse” or “domestic violence” is used, that there is a semi-automatic reaction generated in the minds of CAFCASS officers and other professionals in the court proceedings to think that inevitably all such allegations need to be thoroughly investigated no matter how old or disconnected to the child they may be and, more worryingly, that all such allegations, if found proved, indicate that there should be no direct contact between the abusive parent and the child.”
“It is necessary therefore to remind oneself of basic principles. Those are to be found in the well known authority of this court in the case of Re: L, Re: V, Re: M, Re: H [2000] 2 FLR 334. I am not going to read into my judgment now what is so carefully set out, in particular by Dame Elizabeth Butler Sloss, the then President, in her judgment but I do make one or two observations. The first is this: that the case was not a narrow case which simply looked at domestic violence and then considered the negative consequences of that upon children; a much more sophisticated evaluation is described in the pages of the judgment and there is a further distinction to be made within that. The first third of the then President’s judgment is spent describing the important advice that the court had from Dr Claire Sturge and Dr Danya Glaser, both consultant child psychiatrists, on the issue of domestic violence and contact. Even those well seasoned in family law would benefit from going back to this decision now in 2015 and re reading. There the reader finds a balanced description of the benefits and potential detriments to a child where domestic abuse of some form is alleged. It does not recommend an automatic provision of a solution but it describes a sophisticated weighing of the checks and balances of the benefits and detriments of contact.”
“The court must ascertain at the earliest opportunity whether domestic violence or abuse is raised as an issue of risk of harm to the child which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically on the making of any child arrangements order.”
“A new judge now needs to get hold of this case and to take ownership of it. The progress of the case is not to be dictated by a CAFCASS officer. The judge who takes this case needs to form his or her own evaluation of what needs to be decided, what needs to be evaluated and, if necessary, what contact needs to be attempted in controlled and safe circumstances. Seemingly, on my restricted knowledge of the case, that has not happened to date and for my part that is highly regrettable.”
Discussion on PD12J and Scott Schedules
Like many professionals I’ve seen PD12J used well and used poorly. It was designed as a shield but is sometimes used as a sword. Oftentimes the mere mention of any allegations automatically lead to the cessation of contact for a parent until a fact-finding hearing is listed – any semblance of welfare is shelved. A fact-finding hearing takes at least 8+months to be heard. In that time the child(ren) have little or no contact with the other parent. Obviously, this has to be balanced against the risk of the children spending time with a parent who may be a perpetrator of domestic abuse. Proper consideration of the impact upon the child of a cessation or reduction of contact, which must be undertaken alongside an assessment of the potential risk to the child of having contact (of any form) with an alleged perpetrator of domestic abuse, requires a hearing of appropriate length. It is often not something that can be done (or done properly) at an FHDRA or subsequent directions hearing when it will necessarily compete for time with consideration of directions and proper case management. Obtaining an interim hearing can be difficult. If it is possible to convince the court to list one, it may not be possible for it to be heard until many months in the future.
We have all prepared for fact-finding hearings and come the day of the hearing the Judge says something like, “Once I make the findings you are stuck with them, are you sure you can’t go outside and sort this out.” What follows is no or partial acceptance of the allegations, an order containing a few recitals or undertakings to attend an anger management course, a slow pattern of contact and endless review hearings where the same issues rear their head, leading to the frustration of contact on the basis of the same, undetermined allegations or, alternatively, with the parent making the allegations being painted as an alienator, re-raising allegations for no good reason when in fact they may be true
What is frequently missed is – what message has been/or is going to be given to the child(ren)? This step should be the springboard for contact. Again, we have all taken down a judgment finishing at 16:05 either making some or no findings for one parent to go home and provide the children with their own truth; thus hindering any future progress.
There are usually mixed messages being passed to children during this time period. It is not uncommon for children to be receiving therapy for an alleged event (unbeknownst to the court or other parent). The court also does not have an independent view as to whether the children do or don’t wish to see the other parent.
Mixed into the PD12J case is the use(fulness) of Scott Schedules in dealing with certain allegations.
Hayden J gave his very recent view in F v M [2021] EWFC 4 deprecating the use of Scott schedules but leaving the use of them to the individual judge’s discretion. [See another Transparency Project post on this case here]
“Ms Jones has invited me to make comment on the use of Scott Schedules (i.e. a table identifying the allegations and the evidence relied on in support) in cases involving this category of domestic abuse. Having given the matter considerable thought I have come to the clear conclusion that it would not be appropriate to give prescriptive guidance. Whilst I entirely see the advantage of carefully marshalling the evidence and honing down the allegations, I can also see that what I have referred to as a particularly insidious type of abuse, may not easily be captured by the more formulaic discipline of a Scott Schedule. As I have commented above, what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured. It seems to me that what is important is that the type of abuse being alleged is made clear to the individual who is said to be the perpetrator.
An intense focus on particular and specified incidents may be a counterproductive exercise. It carries the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour. This was the issue highlighted in the final report of the expert panel to the Ministry of Justice: ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (June 2020). It is, I hope, clear from my analysis of the evidence in this case, that I consider Scott Schedules to have such severe limitations in this particular sphere as to render them both ineffective and frequently unsuitable. I would go further, and question whether they are a useful tool more generally in factual disputes in Family Law cases. The subtleties of human behaviour are not easily receptive to the confinement and constraint of a Schedule. I draw back from going further because Scott Schedules are commonly utilised and have been given much judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. Whether a Scott Schedule is appropriate will be a matter for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach.”
The tension
The tension is that the family court has a wide discretion as to how it manages its cases as per the FPR 2010 and specifically,
FPR 2010
The overriding objective
1.1
(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.Application by the court of the overriding objective
1.2
(1) The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by these rules; or
(b) interprets any rule.Duty of the parties
1.3
The parties are required to help the court to further the overriding objective.Court’s duty to manage cases
1.4
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes–
(a) setting timetables or otherwise controlling the progress of the case;
(b) identifying at an early stage–
(i) the issues; and
(ii) who should be a party to the proceedings;
(c) deciding promptly –
(i) which issues need full investigation and hearing and which do not; and
(ii) the procedure to be followed in the case;
(d) deciding the order in which issues are to be resolved;
(e) controlling the use of expert evidence;
(f) encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(g) helping the parties to settle the whole or part of the case;
(h) encouraging the parties to co-operate with each other in the conduct of proceedings;
(i) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(j) dealing with as many aspects of the case as it can on the same occasion;
(k) dealing with the case without the parties needing to attend at court;
(l) making use of technology; and
(m) giving directions to ensure that the case proceeds quickly and efficiently.
These rules give Judges the option to manage cases as they see fit. Some may prefer the use of a Scott schedule, some may not. The issue is still the same, what allegations are relevant and does the court have the time to consider them fully.
Scott Schedules
As to the use of Scott Schedules the below gives an inkling of McFarlane J and King J’s likely views.
In F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, Ryder LJ endorsed the use of a balance sheet in child welfare assessments. McFarlane P was more cautious,
“Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations. One danger that may arise from setting out all the relevant factors in tabular format, is that attribution of weight may be lost, with all elements of the table having equal value as in a map without contours.” [§52]
King LJ, in a medical treatment case, A (A Child), Re [2016] EWCA Civ 759 endorsed those views when a balance sheet was used,
“I would respectfully endorse those views. The courts have long recognised that in disputes in respect of serious medical treatment the matter should be brought before the court. See for example NHS Trust v SR Radiology and Chemotherapy [2013] 1 FLR 1297. At the end of the day, as was emphasised by Baroness Hale in the Aintree case, the test to be applied by the courts in such cases is simply this: what is in the best interests of the child at the particular time in question, having regard to his welfare in the widest sense, not just medical, but social and psychological? Too heavy a focus on a balance sheet may, as was recognised by McFarlane LJ, lead to a loss of attribution of weight.” [§57]
Balance sheets are different from Scott Schedules but the principle is the same. The court must consider the entire canvas to make a decision rather than be constrained by a schedule. It is not unusual for a judgment on a fact finding to describe aspects of the evidence, and then to go through the Scott Schedule and to say “I find this proved” or “this is not proved” with little to no analysis of each particular allegation. Such a judgment is particularly unhelpful because you then do not find out important things such as:
- a) If the allegation is proved, what was behind the perpetrators behaviour in acting in that way?
- b) If it is not proved, what was the parents motivation in making the allegation (if it is possible to discern that)
- c) What is the harm to the child either way?
Legal Principles
The fundamental legal principles that must be applied when determining the applications before the court are neatly summarised by MacDonald J in AS v TH (False Allegations of Abuse) [2016] EWHC 532 Fam [§23-29],
“The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam)). Where the evidence of a child stands only as hearsay, the court weighing up that evidence has to take into account the fact that it was not subject to cross-examination (Re W (Children)(Abuse: Oral Evidence) [2010] 1 FLR 1485).
If a court concludes that a witness has lied about one matter, it does not follow that he or she 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 (R v Lucas [1981] QB 720).
The court must not evaluate and assess the available evidence in separate compartments. Rather, regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out on the balance of probabilities (Re T [2004] 2 FLR 838 at [33]).
There is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not (Re B [2008] UKHL 35 at [2]). However, failure to find a fact proved on the balance of probabilities does not equate without more to a finding that the allegation is false (Re M (Children) [2013] EWCA Civ 388).
In principle the approach to fact finding in private family proceedings between parents should be the same as the approach in care proceedings. However, as Baroness Hale cautioned in Re B at [29]:
“…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.”
Within this context, it has long been recognised that care must be taken not to focus attention on statements made by the child at the expense of other evidence, particularly where allegations of abuse arise in the context of private law disputes. The Best Practice Guidance of June 1997 Handbook of Best Practice in Children Act Cases Section 4, Annex para (k) cautions that:
“Any investigation which focuses attention on the statements of the child runs the risk of producing a false result if what the child says is unreliable or if the child’s primary care taker is unreliable, particularly where the allegation emerges in bitterly contested section 8 proceedings.”
The reality
I do not envy the family court. The pressure of time means that a Judge has the unenviable task of narrowing the issues at a rushed directions hearing without full knowledge of what is being put. A slavish adherence to 6 allegations in a Scott schedule (with strict compliance on sub allegations) means that patterns of behaviour, 3rd party evidence usually fall away – thus rendering any finding almost meaningless in the welfare context.
I sense that Judges know the inherent delays in the system and encourage parties to settle their disputes or case manage in a “let’s see how we get on” way. This almost always never benefits the children or the parties.
Russell J in JEG v IS [2014] EWHC 287 (Fam) (13 February 2014) puts it clearly at §73-74
“Had these allegations been made in public law proceedings the court would not have delayed in hearing the evidence to determine whether there had been abuse or whether the child had been made to believe in such abuse, for as the Guardian observes, both constitute real harm. The need for judicial determination of the facts in private law cases is as necessary as it is in public law cases as the court has a duty to protect children and ensure that decisions and orders are made which are consistent with their best interests and welfare. To do so requires that the factual basis on which orders are made is not permitted to become the subject of a continuous dispute between the parties. It is necessary that there is judicial determination of issues such as there were in this case at the earliest opportunity to avoid proceedings being drawn out and conducted by way of review.”
“An early determination of the facts followed swiftly by a welfare hearing at which the medium and long term pattern for time spent with each can be put in place is the just and proportionate way to deal with private law cases.”
The magic wand
By and large the framework for the court’s approach in a PD12J case is already there. The PD just needs to be followed.
If I were able to wave a magic wand the imperfect solution would be this:
- Statements and Scott schedules lodged with C100ie. Prior to FHDRA;
- Other parent to respond in statement and state whether the allegations are being falsely made;
- Safeguarding letter to address views on risk of contact having seen statements and scott schedule – address what allegations are relevant to welfare;
- FHDRA – Decision as to what matters are relevant to welfare, consider interim contact, is further evidence required, list for PTR and fact-finding hearing;
- In the meantime Cafcass to meet children – provide an outline to the court of the state of mind of the children, what have they been told, what do they believe, do the children want to see the other parent?;
- PTR – is the matter ready for FF, interim contact considered;
- Fact-Finding hearing with an initial welfare decision, consideration as to how the children are informed of the outcome (as is already provided for in the FPR).
Most of all, the magic wand would give the court the time to consider at the earliest stage the evidence to enable it to make a decision as to what is relevant to the welfare determination it will ultimately need to make. My concern is that this is a forlorn hope and the likely message from the Court of Appeal will be that PD12J must be followed and that the court is under a duty to consider the wider canvas rather than be constrained by a Scott schedule, though I do not expect to see them outlawed.