Just before the end of 2021 Mr Justice Peel heard an appeal from a decision of Recorder Feehan QC. The facts relevant to the appeal can be summarised in the following way:
- These were private law proceedings concerning the parties’ son who, at the time of the appeal, was nearly 3 years of age.
- The Judge conducted a fact find hearing. Evidence was given by both parents.
- Counsel for the mother handed to the Judge a schedule of findings sought. During the hearing a number of the allegations the mother brought were abandoned. The remainder could be distilled into two distinct categories – sexual and verbal abuse and then 6 other allegations that did not fit into a category.
- During the hearing the mother was taken ill and admitted to hospital. She wanted the hearing to conclude and chose to participate from her hospital bed. She did not seek an adjournment. It transpired (post the hearing) that the mother’s admission was as a direct result of her giving evidence.
- The Judge dismissed the allegations that the mother made against the father and at a subsequent hearing reinstated contact to include overnight.
- The appeal was successful on the following grounds:- It is the court that MUST consider whether a party / witness requires any participation directions due to vulnerability. No grounds rules hearing took place. The rules are clear this MUST happen where participation directions are to be given.- The Judge approached the case on a linear basis and failed to consider the general context when looking at the specific allegations.- The Judge, at times, minimised the seriousness of the alleged abuse e.g. he said ‘I would not be surprised if a healthy young man were to ask repeatedly for sex after a period of abstinence’ and elsewhere ‘inexperienced young men and women in their first sexual relationships commonly miss cues and misunderstand responses.’- The Judge underplayed the significance of finding the father name calling the mother with words such as ‘dirty’, ‘fat’, ‘fucking stupid’, ‘worthless’, ‘fat bitch’, ‘fucking die’, ‘I fucking hate you’, ‘I will fucking drown you in court’ and ‘Not even your fucking dad wants you.’ Peel J concluded that these were more than ‘unkind words’ and in the context of the case justified a finding of controlling and coercive behaviour. Peel J makes itclear that intentional misconduct is a pre-requite for a finding of abusive behaviour.- The Judge fell into error by not analysing the different accounts in the police and medical records. If attaching weight to inconsistencies then an analysis must be undertaken that then feeds into the wider canvas.- Assessed each party as a witness without context i.e. the impact of someone having to give evidence on traumatic episodes within the context of a pressurised court setting.
Lessons to be learnt:
1. Skeleton Arguments: the decisions tells / reminds / reinforces to us that there are rules and they need to be followed. In particular, (i) skeleton arguments must be limited to 20 pages, in a font no smaller than 12 point with 1.5 or double spacing he says ‘a limit which should be scrupulously observed unless directed otherwise’ and (ii) the bundle must comply with the practice direction.
2. General Law on Appeal: the court may conclude a decision is wrong or procedurally unjust where:
i. An error of law has been made;
ii. A conclusion on the facts which was not open to the judge on the evidence has been reached: Royal bank of Scotland v Carlyle [2015] UKSC 13.
iii. The judge has clearly failed to give due weight to some very significant matters, or has clearly given undue weight to some matter: B v B (Residence Orders: Reasons for Decision) [1997] 2 FLR 602.
iv. A process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust: Re S-W (Care Proceedings: Case Management Hearings) [2015] 2 FLR 136.
v. A discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible. G v G (Minors: Custody Appeal) [1985] FLR 894.
3. Function of the Appellate court: to determine whether the judgment below is sustainable: Re F (Children) [2016] EWCA 546. It should be slow to interfere with findings of fact.
4. Domestic Abuse and Vulnerable persons: it reminds us of the need to comply with PD12J and the newly introduced participation directions – which creates an
assumption that a person’s evidence, who alleges that they have been and / or are at risk of domestic abuse, will be diminished by reason of vulnerability. (s63 of Domestic Abuse Act 2021). Also, remember that PD3AA at 5.2 it mandates a ground rules hearing where a vulnerable party / witness / protected party is to give evidence.
5. Scott Schedules: this decision reaffirms that scott schedules are a thing of the past unless it’s a case of only a few specific allegations. It reminds us that scott schedules run the risk of a judge approaching the case in a formulaic way with the consequences that important aspects are overlooked. The judgment of Mr Justice Poole in FG and HI and JK [2021] EWHC 1367 is helpful because, as practitioners, we been left in the position of not knowing what, if anything, should replace a scott schedule. In this case Poole J directed short narrative summaries.
The Future:
6. The judgment raised the concern that no thought was given to a different process of cross examination. As we continue to experience development in this area I suspect this year we will see more cases that widen the scope as to how these cases should be approached. I think we will see more applications for vulnerable parties / witnesses to have their evidence challenged away from the traditional approach of a court room environment and in one where questions are asked in pre-recoded interviews and where something akin to a deposition might become the way forward.
Written by Lisa Edmunds, CEO, Senior Consultant Barrister and Arbitrator