Private Family Law Update: March 2021
Index of Cases
- Re H-N and Others (Children) (Domestic Abuse: Finding of fact hearings)  EWCA Civ 448 – 4 appeals considering the approach to finding of fact hearings in private law matters involving allegations of domestic abuse.
- T (A Child : habitual residence)  EWFC 26 (12 March 2021) – a conjoined public and private law case concerning the habitual residence of a 5 year old child.
- AB v CD  EWHC 819 – an appeal in respect of findings made following a fact-finding hearing of cross-allegations of domestic abuse.
- Re H-N and Others (Children) (Domestic Abuse: Finding of fact hearings)  EWCA Civ 448
Judgment of the President of the Family Division, King LJ and Holroyde LJ.
The Court of Appeal heard four private law appeals in respect of finding of fact hearings involving domestic abuse allegations. This judgment provides guidance on how to approach such cases reflecting a shift away from specific incidents to patterns of behaviour.
This judgment follows on from the previous authority, F v M  EWFC 4 which considered coercive control and Scott schedules in domestic abuse cases.
The four appeals heard were – the H-N Appeal, the H Appeal, the B-B Appeal and lastly the T Appeal. The H Appeal was dismissed, with the remaining three appeals being allowed and remitted to various judges.
This updated will focus on the general guidance arising from this case, namely how a court approaches cases involving domestic violence. This includes 5 issues/questions:
- Practice Direction 12J and its purpose -– it was outlined that the difficulties do not arise from the Practice Direction but rather the interpretation and implementation of the direction .
The court endorsed the Practice Direction, commenting that it remains fit for the purpose for which is was designed, ‘to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings’.
- Whether there should be a finding of fact hearing? Paragraphs - outlined that this involves considering whether it would be necessary and proportionate, whilst at the same time also bearing in mind the overriding objective.
The use of Scott Schedules - – the court suggested that the time had come to move away from the use of the schedules when identifying issues to be determined commenting that they were ‘a potential barrier to fairness and good process, rather than aid’. The court expressed that the focus needed to be on the wider context of controlling and coercive behaviour which is not considered in isolated and limited incidents.
- The approach to controlling and coercive behaviour -. The recent judgment of F v M  EWFC 4 was endorsed within these appeals both in respect of ‘what is meant by coercive and controlling behaviour, but also because of the valuable exercise that the judge had undertaken in highlighting at paragraph 60 the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour’ .
The Court also expressed the need to address allegations of coercive and controlling behaviour without significantly increasing the timescales of proceedings.
- The relevance of criminal law concepts - – the clear message is that any criminal law principles and concepts should not be imported and used within the Family Court.
Following the decisions, we have seen this year both in terms of the four appeals and F v M  EWFC 4, there will certainly be a shift in the manner in which domestic abuse cases are dealt with.
- T (A Child : habitual residence)  EWFC 26 (12 March 2021)
Judgment of Mrs Justice Judd.
A case concerning the consideration of habitual residence following a successful application by a non-related individual for a child arrangements order in respect of the child, T.
The background of this case included a child, T who was cared by her mother until the age of three. T’s father was not in her life, nor did he have parental responsibility. In 2018, T’s mother sadly died, following which T was cared for by a close friend of the mother, financially supported by the first respondent, K .
K was not related to the mother but grew up with the mother in the same house for six years, as such, there considered themselves more like sisters. K resided in the USA .
K made an application for a child arrangements order in respect of T in March 2019. A section 7 report was completed and recommended a placement with K. On the 5th November 2019, a section 8 and section 13 order was made which allowed T to be taken to the USA for six months. As part of the order, K was required to file and serve advice by counsel in respect of permanently adopting T. The court also directed the Local Authority (London Borough of Enfield) to file a statement as to why care proceedings had not been initiated .
During the process of trying to adopt T, the order permitted K to retain T in the USA was extended several times. Prior to the Covid 19 pandemic, T had returned to the UK on a few occasions. Advice was sought within the USA, the outcome of that advice recommended that the Local Authority apply for a placement order to allow the making of a convention adoption order.
The difficulty which arose was that to make a convention adoption order, T had to be habitually resident in the United Kingdom. The local authority argued he was not, however the guardian and K argued that she was .
The case provides a very helpful summary of the law relating to habitual residence which can be found at paragraphs -.
It was submitted that T was habitually resident in the USA due to the following :
– T now has friends in the USA;
– K had obtained PR;
– T had attended pre-school and school;
– T had other family in the USA (aunt);
– T was receiving counselling and therapy, medical and dental treatment in the USA;
– T had largely been in the USA since November 2019 with permissions to remain being granted;
– the intention had always been and remained for T to reside in the USA cared by K and T viewed the USA as her home.
In the alternative, the guardian and K argued whilst those above factors may well be present, the fact that there was no order declaring habitual residence in the USA meant that T had not achieved either permanence or stability, nor was K able to keep T in the USA without obtaining permission .
The court commented that since the time of T’s mother’s death, T’s relationship with K, whilst attached, was still a relatively new relationship. During the time which T had been in the USA, this was only permitted on a temporary basis. And throughout, the ongoing proceedings and applications by other family members (which were dismissed by agreement) all meant that T’s placement with K was not secure. It was therefore concluded that T had not lost her habitual residence in this country -.
- AB v CD  EWHC 819
Judgment of Mrs Justice Roberts.
An appeal of a case involving cross-allegations of domestic abuse which resulted in findings of rape and threats to remove the children being made at the conclusion of a four day fact-finding hearing.
The historical background of the parties is that they are two doctors who had married in 2011 and separated in 2012. Parents were judicially separated by April 2013. At the time of the separation, the mother was pregnant with their daughter (A), who at the time of appeal was 8 years old. A has lived with her mother since being born. Following the formal separation, both parties spent time with A as a family despite the father spending significant time abroad. A pattern of arrangement had been attempted to allow A to develop a relationship with her father however those attempts broke down in November 2019. The father then issued a formal application for contact 
Allegations of sexual, physical and emotional abuse by the mother arose following the father’s application, following which the father then issued a formal application for the child to live with him. Counter allegations were also made by the father which included sexual and physical abuse and parental alienation. Details of the schedules and findings sought are set out from paragraph - .
The father had been convicted on criminal charges in respect of unauthorised and illegal provision of prescription drugs for which he received a 9 month custodial sentence and removal of his practising certificate. The mother sought to rely upon this as a ‘history of dishonesty’ as to why the father’s evidence could not be trusted .
The findings made by Recorder Armitage following a four day fact-finding hearing included the following:
(i) the applicant father on two occasions sexually abused the respondent mother: on 29 December 2013 whilst she was in bed with the child and on 23 January 2015 whilst attending her home to visit the child;
(ii) the applicant emotionally abused the respondent;
(iii) from 2011 and ongoing the applicant would insult, criticise and demean the respondent;
(iv) from 28 December 2014 and ongoing the applicant has threatened to remove the child with a view to travelling with A to Pakistan. Specifically, in December 2014 the applicant said to the respondent, ‘good luck finding her in the mountains of Kashmir’;
(v) such threats of removal were made in the context of threats to embarrass her professionally;
and in relation to the appellant’s complaints:
(vi) in the summer of 2012, the respondent had tried to snatch his credit card and had subsequently thrown the items from the top of her dressing table to the floor.
- By way of a specific recital to her order, the judge included these words on the face of her order:
“7. Upon the court making no finding in relation to allegations of physical abuse suffered by the respondent despite acknowledging in judgment the strength and power of those allegations”. [The italics are mine.]
The father appealed on the following eight grounds submitting that the judge’s reasoning was fundamentally flawed due to a failure to properly assess and weigh up the evidence, thus, her findings could not stand -:
Grounds 1 and 2: In a case where the appellant was advancing a case of deliberate fabrication against the respondent mother as part of a course of conduct designed to navigate him out of their daughter’s life, the judge erred in maintaining her focus on parts only of the evidence and in excluding from her consideration a number of other serious allegations which she was making against him. It is said that her selective approach which involved the omission from a holistic overview of all the evidence some very serious matters (e.g. the allegations of threats to kill, throwing acid in her face) led her into error.
Ground 3: In respect of the specific allegations of rape and her assessment of the truth or otherwise of these allegations, the judge erred in her approach to the evidence. She failed to take into account a number of matters raised by the father in a fair, balanced and contextual examination of all the facts.
Ground 4: The judge failed to address or consider properly the allegation made by the appellant that the respondent had changed the child’s name without his consent.
Ground 5: The judge fell into error by failing to consider or have any regard to the sexual difficulties which had arisen within the parties’ relationship and the allegations which the appellant made that he had in the past been sexually abused by the respondent. It is said that she focused too much on the respondent’s evidence and upon parts only of the evidence without taking sufficient care to balance fairly or at all other aspects of the evidence. In so doing she adopted a ‘compartmentalised’ approach.
Ground 6: In her failure to carry out a proper analysis of ‘certain critical evidence’, the judge’s conclusions as reflected in her findings are unsafe; and
Ground 7: The judge failed to give herself an appropriate Lucas direction in respect of the father’s evidence and appears to have determined his credibility in relation to the separate rape allegations within the context of other allegations of a different nature.
Ground 8: The judge was plainly wrong to have included Recital 7 on the face of her approved order. Having decided to make no findings in relation to allegations of physical abuse made by the respondent, she nevertheless referred to these allegations as both ‘strong’ and ‘powerful’.
It was argued on behalf of mother that the findings made were ‘well within the ambit of the discretion entrusted to her’ and in the absence of a procedural irregularity or error of law, she invites this court to find that there is no justification for disturbing those findings’ 
The law and relevant case law is set out from paragraph -.
The appeal was allowed, concluding that the findings could no longer stand, and the matter was to be re-heard for the following reasons:
- Credibility – there was a lack of analysis as to how the judge had reached her conclusions in relation to issues of credibility of the applicant. The judge had decided to ignore certain allegations which she was able to do so as part of case management however she then included the above recital at paragraph 7 in which suggested that she had considered those to perhaps be true, therefore causing concern as to whether that formed part of the judge’s assessment of credibility -.
- Lucas direction – there was no specific reference to a Lucas direction within the judgment which was very much a relevant direction given the heavy cross examination of the father’s conviction but also as the judge had previously referred to this being something she was plainly aware of. The judge had instead outlined, ‘Well, first of all, on behalf of Father, I make clear that despite his conviction after trial and his admitted dishonesty in relation to the conduct of his appeal against erasure, heard by the court in March 2015, I have placed no reliance on that for the purposes of this hearing’.
Mrs Justice Roberts outlined, ‘A judge is not required to expunge from his or her mind or from an analysis of the evidence the fact that a witness has been dishonest or untruthful on a previous occasion. That would be to ignore what might in any particular case prove to be a significant element in the evidential landscape. What is required of a judge is a self-direction that a person can lie for a number of different reasons including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. Lies or dishonesty in the past do not of themselves prove the existence of lies now. Having given himself or herself such a direction, a judge must then reflect in the judgment how that direction has shaped his or her approach to relevant issues of credibility.
In cases involving previous dishonesty or inconsistent statements, that is inevitably an essential part of the analysis in relation to the general credibility of the witnesses from whom the court receives evidence. Where, as here, a judgment lacks clarity in relation to that assessment, it is difficult to determine the extent to which this point was shaping or influencing any internal analysis or thought process conducted by the judge. It operates in the context of her assessment of credibility of each of these parties. In relation to the appellant’s evidence and the fact of his previous conviction for dishonesty, the judge’s apparent solution was to put it from her mind completely. In the case of the inconsistent statement which the respondent provided in the form of a character reference for him in the context of those criminal proceedings, the judge said this:
“…..I propose to say nothing more about it …. It is written in the context of Father’s difficulties; she is his wife, she has plainly written it, I do not regard it as evidence that she is lying now or as evidence that she was lying then. In my judgment, it is a document written by a wife in support of her husband and I decline to make findings adverse to her, based on that.” 
It was commented upon that the judge had started with the right questions, but the issue was the absence thereafter of any analysis to understand the response to the questions .
Mrs Justice Roberts commented :
I do not reach that conclusion because she was wrong but because of the manner in which she appears to have reached those conclusions.
The inclusion of the recital about ‘strength and power’ of the allegations which were not to be determined raised concerns that such matters had in fact informed her conclusions.
The judge did fall into the error of compartemalising much of the evidence rather than considering the totality of the evidence.