Private Family Law Update – January 2021
Index of Cases
F v M [2021] EWFC 4 – Considered coercive control and Scott schedules in domestic abuse cases.
https://www.bailii.org/ew/cases/EWFC/HCJ/2021/4.html
M v H ( private law vaccination) [2020] EWFC 93 – A Specific Issue Order regarding the vaccination of a child.
https://www.bailii.org/ew/cases/EWFC/HCJ/2020/93.html
R (no order for contact after findings of domestic abuse) [2020] EWFC B57 – Orders for contact following domestic abuse findings being made.
http://www.bailii.org/ew/cases/EWFC/OJ/2020/B57.html
- F v M [2021] EWFC 4
Judgment of The Hon Mr Justice Hayden.
An application by a father for contact with his two children in a case involving allegations of coercive and controlling behaviour.
The case involved considering the circumstances of two separate families/relationships, in which the father (F) was the common denominator.
When considering similar fact evidence, this case outlined that the civil approach equally applies to family proceedings, requiring two key questions to be addressed:
- Is the evidence relevant as potentially making the matter requiring more proof more or less probable?
- If the answer to the question above is yes, then secondly, is it in the interests of justice for the evidence to be admitted?
Having considered the above in light of the excluded evidence from the second relationship, the Court of Appeal concluded that this decision could no longer stand and allowed the evidence. Mr Justice Hayden held that: ‘The consideration of both ‘cases’ together served to illuminate the sinister, domineering and, frequently, tyrannizing complexion of F’s behaviour, to a degree which would not have been fully appreciated had the cases been severed. It is the chilling repetition of identical behaviours, with two very different women of different age and background, which casts evidential light and does so in each individual case.’
Mr Justice Hayden outlined that understanding the scope and ambit of the behaviour required recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation, and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.’ It was also acknowledged at present there was little reported in case law in the family courts which considered ‘coercive and controlling behaviour’.
The judgement is a lengthy one but one which is a necessary read in order to fully appreciate the circumstances that both women went through and the wide-ranging nature of what amounts to ‘coercive and controlling behaviour’.
In summary, the first relationship involved a young and vulnerable women (M) from a Hindu background. She met F whilst at university in 2013, F was in the United Kingdom pursuant to a student visa, with his home being in South Eastern Europe. Within weeks of their relationship, F was discouraging M from seeing her friends including removing M from their company. F also started discussing marriage with M, to which she eventually agreed. Throughout this time, friends expressed concerns that F was controlling her, and her parents sought to discourage both from rushing into marriage. This only encouraged F to distance M from her family, resulting in her not answering calls and even when she did, F would be present and seek to direct M’s conversation. The behaviour was not just limited to M, but also extended to her parents who F, through M, would threaten, intimidate, and frighten.
Eventually M became pregnant, another aspect of F’s coercive and controlling behaviour. F insisted that M contact her family to inform them of the pregnancy without allowing M any time to process it herself. MGM outlined in evidence how throughout this call M was distressed and sobbing. Shortly after becoming pregnant, M managed to ‘escape’, as described by her parents. Unfortunately, her separation from F did not last long as a result of him reporting to the police that M’s parents were keeping her against her will, bombarding her with text messages, threatening to take his own life and then claiming that M’s parents were forcing her into a termination against her will. F outlined in his evidence how he prevented what he terms to be ‘an honour-based killing’, something which he perhaps had taken from the police document titled ‘Disclosure Report’ which formed part of the police records provided.
Following M’s return to F, what followed was a series of events which only resulted in further isolated circumstances for M. This included being told to leave university to prevent stress on the baby, contact with her parents ceasing, getting married alone, multiple accommodation including her freedom being curtailed whilst she would be locked in a room together when F was out.
During this time, F further relied upon his account of ‘honour based killing’ when M’s parents would contact the police to check on their daughter’s welfare and F would continue to intimidate them when they would try to see M.
Mr Justice Hayden specifically commented upon how F was even able to manipulate those in authority, I consider that M was not only the victim of F’s controlling and manipulative behaviour, but her parents were also cowed by him. He appeared to outwit them at every turn and to be able to convince others, including to some extent the police that it was he who was the victim. M’s parents had plainly begun to feel entirely powerless.’
The judgement details how M’s life over the next 18 months continued in the same manner including examples of financial and sexual abuse by F. The turning point came in September 2017 when M became further pregnant with their second child, following which M sent a desperate message to her parents for help. Since then, she remained separated from F.
The second relationship involved Ms J, a woman in her mid-forties with 2 children. Following the breakdown of her relationship, Ms J took to an online dating website and met F (although he was now known as Jordan) in October 2017. F claimed to be a Direction of a National Health Trust, earning £3330,000 per year, Eton educated and owned a property near London Bridge.
Ms J’s mother, Mrs G was concerned upon meeting F and unlike her daughter, was not fooled by him. Ms J failed to take on board what Mrs G refers to as ‘alarm bells’ going off in her head.
Just like M, in a matter of weeks, the couple were discussing marriage, pregnancy and F was controlled any communication with Ms J’s family. In mid-July 2018, Ms J had resigned from her job and disappeared with F and the children. Mr T (father to the children) was notified the children had been registered in a school in Cardiff. Thereafter followed children act proceedings which concluded with the children being placed in their father’s care.
At the time of the hearing, Ms J remained with F. She was called as a witness but informed the court she was not prepared to give evidence. Mr Justice Hayden described Ms J as ‘…profoundly sad and lost.’
Mr Justice Hayden commented that ‘This may be the first time the Family Court, at High Court level, has been called upon to analyse allegations of controlling and coercive behaviour with the kind of detail that this case has required. Certainly, neither Counsel nor I have been able to find any other reported case in our respective research. Though some of the behaviours I have been evaluating are sadly all too familiar to those involved in investigating domestic abuse, understanding and identifying them in the context of a wider pattern of behaviour presents a continuing challenge. At risk of labouring the point too heavily it is crucial to evaluate individual incidents in the context of the wider forensic landscape.’
He goes onto outline that it is helpful to consider both family and criminal law, in particular:
‘Coercive and controlling behaviour’ as defined in the Family Procedure Rules 2010
PD12J.
Section 76, Serious Crime Act 2015, which creates the following offence, “76 Controlling or coercive behaviour in an intimate or family relationship”.
The following comments by Mr Justice Hayden are particularly helpful in how to consider tackling case of this nature:
‘Whenever Judges are called upon to resolve issues of fact, we do so by evaluating separate strands of evidence and then considering them in the context of the whole. Some features of the evidence will weigh more heavily than others and evidence which may not be significant, in isolation, may gain greater relevance when placed in the context of the wider evidential canvas.’
‘The overall approach to the assessment of evidence here is the same as in any other case. What requires to be factored into the process is the recognition of the insidious scope and manner of this particular type of domestic abuse. The emphasis in Section 76 of the Serious Crime Act 2015, is on “repetition” and “continuous engagement” in patterns of behaviour which are controlling and coercive. Behaviour, it seems to me, requires, logically and by definition, more than a single act. The wording of FPD 2010 12J is therefore potentially misleading in so far as it appears to contemplate establishing behaviour by reference to “an act or a pattern of acts.’
‘Key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the context of wider behaviour. I emphasise it is the behaviour and not simply the repetition of individual acts which reveals the real objectives of the perpetrator and thus the true nature of the abuse.’
Mr Justice Hayden was also asked to consider the use of Scott Schedule in cases of this category of domestic abuse. Whilst he outlined it would not be appropriate to give prescriptive guidance, he did provide the following comment:
‘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’.
‘It is, I hope, clear from my analysis of the evidence in this case, that I consider Scott Sche ules 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 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’.
- M v H ( private law vaccination) [2020] EWFC 93
Judgement of Mr Justice MacDonald.
An application from a father in respect of a specific issue order authorising the administration of vaccination of the two subject children.
The fathers application originally related to an application for a specific issue order on the MMR vaccination but then this was later amended to encompass the NHS vaccination schedule. As the proceedings went on, the father also sought for the vaccinations to include any relevant to overseas travel and Covid-19. The mother objected to the children receiving any vaccinations.
Mr Justice MacDonald confined his decision to only to whether or not the application in respect of those vaccines included on the NHS vaccination schedule should be granted.
The following paragraphs set out the relevant case law in respect of parental responsibility and vaccinations:
‘where two parents with parental responsibility disagree as to the proper course of action with respect to vaccination, the court becomes the decision maker through the mechanism of a specific issue order made pursuant to its jurisdiction under s 8 of the Children Act 1989. When considering whether to grant a specific issue order requiring vaccination as being in each child’s best interests, those best interests are the court’s paramount consideration pursuant to s 1(1) of the 1989 Act and the court must have regard to the matters set out in the ‘welfare checklist’ contained in s 1(3) of the Children Act 1989 (Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1095). Pursuant to s 1(5) of the 1989 Act the court should not make a specific issue order unless doing so would be better for the child than making no order at all. With respect to the matters that inform the exercise of the court’s jurisdiction under s 8 of the 1989 Act where the parental dispute concerns vaccination, the courts have considered the issue in a number of cases.’
‘In Re C (Welfare of Child: Immunisation) Thorpe LJ made clear that there is no general proposition of law that the court will not order vaccination in the face of rooted opposition from the child’s primary carer. In Re B (A Child: Immunisation) [2018] EWFC 56 His Honour Judge Clifford Bellamy sitting as a High Court judge observed as follows at [93] to [94], in a passage expressly endorsed by the Court of Appeal in Re H (A Child: Parental Responsibility: Vaccination) at [74]:
“[93] In making that order, like MacDonald J, I make it clear that my judgment is not a commentary on whether immunisation is a good thing or a bad thing generally. I am not saying anything about the merits of vaccination more widely. I do not in any way seek to dictate how this issue should be approached in other situations. I am concerned only to determine what is in B’s best welfare interests.
[94] That said, it is, in my judgment, appropriate to make the point that this is now the sixth occasion when the court has had to determine whether a child should be vaccinated in circumstances where a birth parent objects. On each occasion the court has concluded that the child concerned should receive the recommended vaccine (save that in Re C and F (Children) Sumner J decided that the older child, aged 10, should not have the HIB vaccine, because the danger for her had past, or the Pertussis vaccine, because there was no approved vaccine for a child of her age). With respect to the vaccines with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed.’
‘Finally, as I have noted and within the foregoing context, in Re H (A Child: Parental Responsibility: Vaccination) the Court of Appeal undertook a comprehensive review of this area. Whilst that case concerned public law proceedings under Part IV of the Children Act 1989, the Court of Appeal also reviewed the position in private law proceedings under Part II of the 1989 Act. Within the context of its meticulous and comprehensive review of the historical background and the case law, the Court of Appeal articulated the following conclusions with respect to the vaccination of children generally:
- i) It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines but there is at present no legal requirement in this jurisdiction for a child to be vaccinated.
- ii) Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good.
iii) All the evidence presently available supports the Public Health England the advice and guidance that unequivocally recommends a range of vaccinations as being in the interests both children and society as a whole.
- iv) The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule which is found in the Green Book: Immunisation against infectious disease, published in 2013 and updated since.
- v) The evidence base with respect to MMR overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.
- vi) The clarity regarding the evidence base with respect to MMR and the other vaccinations that are habitually given to children should serve to bring to an end the approach whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child has an unusual medical history and consideration is required as to whether the child’s own circumstances throw up any contra-indications.
vii) Subject to any credible development in medical science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects.
viii) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.
- ix) This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engaged when considering the best interests of the child with respect to the question of vaccination.’
Within this case, the Court was satisfied that it was in the best interests of both children to be given the vaccines currently specified on the NHS vaccination schedule.
The decision was based on the following grounds:
- Due to parents being unable to reach a decision in respect of whether or not the children should be vaccinated, it was clear that the court needed to determine the matter by way of a specific issue order.
- Considering the decision in Re H (A Child: Parental Responsibility: Vaccination) where the Court of Appeal came to the clear conclusion that we have now reached the point where, whilst not compulsory, scientific evidence establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good.
‘…a court will be unlikely to conclude that immunisation with the vaccines that are recommended for children by Public Health England and set out in the routine immunisation schedule is not in a child’s best interests absent (a) a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the vaccines that is the subject of the application and/or (b) a well evidenced medical contraindication specific to the child or children who are subject of the application.’ There was no such credible evidence before the Court.
Mr Justice MacDonald refused to make an order in respect of travel vaccinations on the basis that it would not be appropriate to make an order when travel vaccination may or may not be required at some unspecified point in the future. In addition to considering the mothers response in cross examination, namely that she ‘was not ruling them out’ when asked if she would be consider those when any travel plans arose.
In respect of the Covid-19 vaccination, Mr Justice MacDonald deferred in reaching a conclusion on the basis that the Covid-19 vaccination programme was in its early stages and it would be too premature to determine the issue of the Covid-19 vaccination within this case. He specifically outlined that:
‘it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children’.
He then went onto add:
‘I make clear at the conclusion of this judgment, having regard to the principles that I reiterate below it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidenced contraindication specific to that subject child.’
- R (no order for contact after findings of domestic abuse) [2020] EWFC B57
https://www.bailii.org/ew/cases/EWFC/OJ/2020/B57.html
Judgment of HHJ Vincent.
An application by a father for direct contact with his daughter and for a parental responsibility order.
A finding of fact hearing previously took place in October 2018, the final hearing was to deal with the application for direct contact, which was opposed by the mother who instead put forward indirect contact.
The background of the parties is that they met in October 2008 when the mother was travelling to South America. A long-distances relationship took place for the next three years until the father came to England in September 2010 to live with the mother on a one-year student visa to complete a master’s degree. As the judgment went on, the relationship which started a one filled with high passion and intensity of feeling turned into one which was demanding and oppressive. The father’s behaviour was one which fluctuated between moods which at times were aggressive, particularly in their sexual relationships which left the mother feeling intimated and at times scared.
There was an initial separation in 2011 when the father returned to South America. Following this the mother reported that she had been a victim of abuse and requested that she be notified on if the father returned to England. The parties reconciled in 2021 when their daughter was conceived. The mother spent periods of time in South America, including 7 weeks from September 2013 to October 2013 until the parents finally separated in December 2013.
The father relied on those periods of reconciliation to evidence that mother was not then and is not currently frightened of him. Mother explained that the father was suffering from a mental health condition which she felt responsible for his wellbeing however she soon realised the relationship was not going to work once she had arrived at the father’s home.
HHJ Vincent had preferred in general terms the account of the mother during the fact-finding hearing. Within the judgment, the Court found the following:
‘the father at times did find it difficult to control his temper and that he had lost his temper with the mother, accepting her account of his change of behaviour;
that the father had caused physical harm to the mother by insisting on practicing on a daily basis aikido moves on her;
the father has sought to mislead the Court about his mental health diagnosis;
the father when in England between January and June 2011 did seek to influence the mother in ways that made her feel increasingly isolated, to lose self-confidence and her sense of identity. whilst he did not issue direct instructions, but by making it clear of his expectations, by his responses to her friends and family, what she wore, her body shape, he did exert this influence over her which was unhealthy and contributed to her experience of the relationship as abusive… do accept the relationship between January and June 2011 was abusive;
accepted thereafter the mother was still heavily invested in the relationship, wanted it to work and felt responsible for the father’s emotional wellbeing. I do not find any instances of controlling or abusive behaviours post June 2011.’
At this final hearing, the mother opposed direct contact instead proposing regular indirect contact in the form of letters and cards. Applications were also made for a Prohibited Steps Order and Non-Molestation Order.
The Court considered the welfare principles and checklist, PD12J and the relevant case law in relation to the application for contact. Having reviewed the relevant case law, HHJ Vincent commented that:
‘These cases are extremely helpful in reminding the Court of the care and scrutiny that should be taken when contemplating making orders which would have the effect of preventing a relationship between a child and her parent, but not a guide as to what decision a judge should take in any given situation. All of these cases were decided before Practice Direction 12J came into force, which is the tool I must apply in this case, having regard to its particular facts.’
In particular the Court was referred to the case Re L (A child)(Contact: Domestic Violence) & Ors [2001] FLR 260. In her judgment Lady Justice Butler-Sloss, who was President of the Family Division at that time, gave guidance as to the approach that should be taken. The path from this case to Practice Direction 12J is evident. At pages 272-273 of her judgment, she said:
‘There is not, however, nor should there be, any presumption that on proof of domestic violence the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration.’
In considering the application for parental responsibility, the Court considered s4 Children Act 1989. The following case principles were relied upon:
‘The application must be considered separately from any question about child arrangements although where a father is unable to exercise such responsibility his application will be refused (M v M (parental responsibility) [1999] 2 FLR 737).
Paragraphs 13 to 17 of Re M (Parental Responsibility Order) [2013] EWCA Civ 969, In every case the Court must weigh in the balance the factors in favour of and against granting parental responsibility and deciding on the facts of the individual case whether an order for parental responsibility is in the interests of the child. The Court should take into account the degree of commitment the father has shown towards the child, the degree of attachment between him and the child and the reasons why he is applying for the order.’
Having considered the welfare checklist, HHJ Vincent concluded that:
‘having had regard to all the evidence and for the reasons given above, I do consider that to require the mother to make R available for direct contact with her father would expose her to a risk of harm that cannot be managed. They cannot co-parent. The mother’s anxieties around contact with him and submitting her daughter to spend time with him would sustain, and the father has done nothing to show her that he can support her, or reassure her so that her anxiety would lessen in the future. For reasons given, I do not consider that supervised contact would be an effective means of managing the risk and would not reduce the potential for conflict.’
‘I have had regard to R’s and her father’s article 8 rights to family life, and acknowledge that this does expose her to the risk of harm as a consequence of not having a relationship with her father. However, I am satisfied that the harm that would come to her as a result of making the orders is far greater. Further, it may yet prove possible for the relationship to be re-established, but it must be after the father has been able to acknowledge the harm caused, demonstrate a willingness to change, in the first instance by showing understanding of the impact of his behaviour on the mother, and supporting rather than undermining her as a parent. Therapy or a domestic abuse perpetrators course as Mr Kent suggests might be a good start.’
Instead, the Court directed indirect contact by way of letters, cards and gifts on Christmas and birthdays.
The application for parental responsibility was refused on the grounds that:
‘The father does not at this time have an established relationship with his daughter and his attitude towards the mother is highly negative, and there is a significant risk that his having parental responsibility would undermine her ability to care for her child’.
‘…I do not consider it appropriate that he should exercise parental responsibility in circumstances where he does not have a relationship with her, is not going to be in a position to make informed decisions about what is in her welfare interest and where he has a very fixed view that the child’s mother is wrong and that his perspective is right.’
As a result, the application for a prohibited steps order was refused based on the no order principle. There was no need to place a restriction on the father’s access where he is not granted parental responsibility.
The application for a non-molestation order was also refused as the Court was not satisfied that there was sufficient evidence that the fathers conduct could be regarded as ‘such a degree of harassment as to call for the intervention of the court.
