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K and K [2022] EWCA Civ 468

Handed down on Friday 8th April 2022

[Before Sir Geoffrey Vos, Master of the Rolls, Sir Andrew McFarlane, President of the Family Division and Lady Justice King]

Following on from Re H-N some long-awaited guidance from the Court of Appeal as to the proper approach to fact-finding hearings in private law family proceedings.

The message from this judgment comes as little surprise given Sir Andrew McFarlane’s commitment to reduce the amount of private law disputes currently before the courts. This judgment emphasises the need for families, where appropriate, to look at mediation or other consensual resolution models when matters cannot be agreed upon. It also sits within the current directive being deployed which is to make ‘every hearing count’. This judgment reminds us that ‘not every case requires a fact-finding hearing even where domestic abuse is alleged’ [Re H-N §8].

Summary of the Case

FACTS: Parents married, had three children and 12 years later separated. Post separation the children had regular unsupervised contact with their father. Two years post separation the father issued an application for an urgent hearing as the logistical arrangements for handovers had broken down. The father certified the matter was urgent, and therefore by-passed MIAM due to the proximity of Christmas and fear that he may not see the children during the festive period. There was a FHDRA and the court had the safeguarding letter which contained an allegation of rape and allegations of controlling behaviour. These were not referenced in the mother’s C1A. The C1A made minor allegations against the father and did not state that the mother objected to the children spending unsupervised time with their father. Within the safeguarding letter the court was invited to consider a fact find hearing. At the FHDRA the Judge proceeded to list the matter for a fact find hearing, not fully knowing what, if any, allegations the mother sought to have determined by the court and why. At the fact find hearing the Judge made a number of findings against the father, including rape and controlling behaviour. The consequences were a section 7 report recommending that there should be no further direct contact between the children and their father and limited indirect contact.

On APPEAL: The Court of Appeal determined that mediation may have proved the most appropriate model for resolution. The court emphasises the need now (for so then ever) for courts to constantly and consistently explore any validity of an asserted exemption to MIAM and to actively look at ‘non court dispute resolution.’ The court identified ‘missed opportunities’ with these proceedings where resolution could have possibly been achieved without causing delay to the resolution of the children’s welfare and not putting the parents through the trauma and damage of adversarial litigation.

The Court of Appeal concluded the findings were unsafe because the Judge ‘failed to look at the matter in the round’. It determined that the allegations must be considered within a framework relevant to the facts of that particulate case, ‘the judge ought to have considered all the allegations in the context of the contention that most fundamentally affected the question of future contact, namely whether the father was demonstrating coercive and controlling behaviour affecting the children’s welfare after the separation.’ The court emphasised that the judge did not (a) make findings that the children had suffered harm, and (b) there were no findings that the children had witnessed any domestic abuse against their mother and therefore raised concern about the recommendations made by the section 7 court welfare officer.

The appeal was allowed and has been re-mitted to a Circuit Judge to, in the first instance, consider whether a fresh fact-finding hearing is required. The court, interestingly, invited the parents to consider mediation or other consensual resolution to these proceedings – a little steer on the direction of travel you might think.

I think the final paragraph of the Court of Appeal’s judgment is one to log, ‘All judges hearing children cases will know that there will almost inevitably be emotional fallout following the separation of adults who have been in a close relationship. Whilst the court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the court hear about, much less to resolve, issues between the parents relating to their time together, unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child.’ [§89]

So what do you need to know…

Mediation Information and Assessment Meeting [‘MIAM’]

Section 10 of the Children and Families Act 2014 [‘CFA’] requires that ‘before making a relevant family application, a person must attend a family mediation information and assessment meeting.’

Part 3 of the Family Procedure Rules 2010 makes provision for ‘non-court dispute resolution’ including the following: 3.3(1) ‘The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.’ [§29]

– Exemptions apply – including urgency. Rule 3.10(1) provides that ‘the court will, at gatekeeping and, or at the first hearing, inquire whether the exemption was validly claimed.’ If the court finds it’s an invalid claim then it will direct a MIAM unless, in all of the circumstances of the case, the MIAM requirement should not apply.

– Takeaway Points:

1. MIAM: cannot be swerved you must, in the appropriate cases, comply with section 10 CFA 2014. ‘For the statutory MIAM requirement to be effective, it must be enforced.’

2. EXEMPTION CLAIMED: the court will look at whether this is a valid claim. Remind yourself of the exemptions and the criteria for issuing urgent and / or without notice applications.

3. OTHER OPTIONS: the court will ask you / your client to consider if these matters can be resolved outside of the court arena. Consider options with your client like mediation, neutral evaluations and arbitration.

4. CLIENT CARE: you need to explore with your client the objections for applying to be exempt from MIAM and / or why non-court dispute resolution is not appropriate. Manage your client’s expectations and be prepared to engage with this issue, with the Judge, at every hearing.

First Hearing Dispute Resolution Appointment [‘FHDRA’]

– The purpose of this hearing is to give the parties an opportunity ‘to be helped to an understanding of the issues which divide them, and to reach agreement.’ Child Arrangements Programme FPR PD12B.

– Takeaway Points:

1. MAKE EVERY HEARING COUNT: the court will look at whether a non-court dispute resolution is appropriate.

2. TEST FOR FINDING OF FACT – the four-step test:

a. The nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child’s arrangement order,

b. That the purpose of a fact-finding is to allow assessment of the risk to the child and 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 Issues

– ‘The Judge considering a fact-finding hearing must first identify the child welfare issue to which the resolution of the dispute will be relevant’.

– Takeaway Points:

1. NEXUS: there must be a link between the allegation and the child’s welfare to which the application relates to.

2. CONTEXT: the issues must be looked at in context – would the allegation, if proved, affect the child’s welfare within the framework of the order sought.

3. ACCURATE RECORD OF COURT DETERMINATION: whatever the court decides it must be clearly captured so there is a reliable ‘audit trail’ of the decision. The order needs to record the outcome of the MIAM process and that non-court resolution models have been considered and applied / discounted. If there has been a fact find hearing then raise with the court whether there is a need for a transcript of any decision before any risk assessment takes place. In my view, the risk assessor requires a transcript or a clearly accurate and sufficiently detailed set of recordings on the face of the court order that provides the context to any findings made rather than the headlines that might be mis-interpreted / mis-understood

Moving forward this judgment will be referenced and quoted by many Judges and practitioners so I thought it helpful to give you the sound bites.

NON-COURT RESOLUTION: ‘we would also emphasise the importance of proper consideration being given to the possibility of non-court dispute resolution.’ [§29 and 40]

FHDRA: ‘..as its name suggests, primarily an opportunity for judicially led dispute resolution.’ [§7]

PD12J: ‘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.’ [§8]

FACT FIND HEARING: ‘A decision to hold a fact-finding hearing is a major judicial determination within the court of family proceedings.’ [§42]

‘the duty on the court is limited to determining only those factual matters which are likely to be relevant to deciding whether to make a child arrangements order and, if so, in what terms.’ [§67]

ISSUES: ‘It is not a requirement for the court to determine every single subsidiary factual allegation that may also be raised. The court only decides individual factual allegations where it is strictly necessary to do so in addition to determining the wides issue of coercive or controlling behaviour when that itself is necessary.’ [§70]

COERCIVE AND CONTROLLING BEHAVIOUR: ‘Where coercive or controlling behaviour is alleged in this context, it is likely to be the primary matter requiring determination, provided that it is likely to be relevant to an issue relating to a child’s welfare. In Re H-N at [56] made clear that the focus on coercive or controlling behaviour as the primary issue should make it generally unnecessary to determine other subsidiary date-specific factual allegations.’ [§68]

CONTEXT: ‘the judge ought to have considered all the allegations in the context of the contention that most fundamentally affected the question of future contact, namely whether the father was demonstrating coercive and controlling behaviour affecting the children’s welfare after the separation.’ [§10]

RISK ASSESSMENT: ‘There is, in our view, a real danger in reducing bespoke, detailed and subtle findings made by a Judge to one or two word headline labels, in place of the

original details. The case analysis used the labels of rape, bullying, manipulation and physical abuse, each of which emits a neon light in an erroneous and unjustified manner.’ [§85]

Lisa Edmunds is a qualified Children’s Law Arbitrator and provides neutral evaluation appointments for separated parents.

For more information on how this might work for your client please contact Eve Humphries, [email protected]

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