Private Law Update: April 2022
Index of Cases
- K v K  EWCA Civ 468 – The Court of Appeal allowed an appeal against the outcome of a fact-finding hearing in private law proceedings. The Judgment has provided general guidance about the approach to private law fact-find hearing in light of Re H-N  EWCA Civ 448.
- P (Children)(Disclosure)  EWCA Civ 495 – The Court of Appeal dismissed an appeal made by a Father who had serious findings made against him in private law proceedings. The Father had applied for protection from the possibility of incriminating evidence being used in criminal proceedings.
- Griffiths v Tickle & Ors (Re Disclosure by Counsel for Appellant and Application by First Respondent)  EWCA Civ 465 – An appeal concerning a judgment that was published without anonymising the Mother and the Father concerned. The Court of Appeal upheld the decision and dismissed the Father’s appeal against the same.
K v K  EWCA Civ 468
Judgment handed down by Sir Geoffrey Vos
Following the decision in Re H-N  EWCA Civ 448, the Court of Appeal handed down general guidance in relation to private law fact-finding hearings, as well as endorsing the court’s decision in that case. It was noted the District Judge in Re H-N reached his decision prior to Re H-N.
Background: The Father (F) and Mother (M) share three children and separated in August 2017. F had unsupervised contact with the children until the logistical arrangements led to conflict between the parents. In 2018, A (one of the children – 12) refused to see F. In December 2019, F issued a C100 application complaining of parental alienation. He sought to formalise weekend and holiday contact. M filed a C1A form in February 2020 and a safeguarding letter from CAFCASS was subsequently produced before the FHDRA. CAFCASS advised the Court to consider a fact-find hearing due to an allegation of rape committed by F on M, among other allegations. At the FHDRA, the DJ decided there should be a fact-find and ordered that F should have supported day time contact in the interim. Findings were made at the hearing and eventually a final order was made for monthly indirect contact only.
Their conclusions are summarised as follows:
- It was unfortunate the parties did not take advantage of the MIAM. The logistical issues could have been dealt with out of Court, particularly as M did not see the alleged rape or generalised allegations of coercive behaviour as central to the issues between them re. child contact.
- Section 10 of the Children and Families Act 2014 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. There is a tightly drawn list of exemptions in rule 3.8.
- The validity of F’s claimed exemption was not argued on appeal. But the Judgement referred to the statutory scheme to stress the importance of the requirement in rule 3.3(1).
- The FHDRA is an opportunity for judicially led dispute resolution. The possibility of logistics being sorted out by agreement – given M did not object to contact – should have been explored.
- It is important that a Judge considering ordering a fact-finding hearing identifies “at an early stage the real issue in the case in particular with regard to the welfare of the child.” (Re H-N). 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.
- The modern approach is reflected in the general principles section of Practice Direction 12J(4) and detailed guidance in set out in paragraph 16 to 20 of Practice Direction 12J.
- The Court stated that the Judge’s decision to hold a fact-finding hearing was premature. Rather than making a decision at the FHDRA, the Court should have (a) identified the issues between the parents as to the children’s welfare, and
(b) given the mother time to decide, with the benefit of legal advice, what factual findings she wanted to contend required to be decided by the court, because they were “likely to be relevant to any decision of the court relating to the welfare of the child”, always bearing closely in mind that she was not seeking to prevent contact between the children and their father.
- The finding that F raped the M was unsafe because the Judge failed to look at the matter in the round. He focused heavily on whether M had a conversation complaining about F’s contact, rather than considering all the available evidence (which included untruthful assertions by M).
- The Court referred to Baroness Hale’s definition of the proper approach to the standard of proof in Re B (Care Proceedings) [2008[ UKHL 35 – the point was reinforced that Baroness Hale rejected the proposition “the more serious the allegation, the more cogent the evidence needed to prove it.” (Re S-B  UKSC 17].
- The Judge ought to have considered all of the allegations in the context of those behaviours affecting the children’s welfare after the separation.
- Whilst certain allegations – such as bullying in June 2019 – were made out, the generalised allegation of coercive and controlling behaviour was not. The Judge had found no evidence of financial control, yet went on to find controlling behaviour after the separation based mainly on Whatsapp messages on a single day.
- The Court referred to the judgment in Re H-N regarding the proper approach to be taken where there is an allegation of coercive and controlling behaviour.
- The appeal, therefore, must be allowed and sent back to a Circuit Judge for a decision to be made as to whether a fresh fact-finding hearing is required. The Judge urged to consider, even at this late stage, whether there was room for some compromise in the best interests of the children.
Finally, the Court mentioned the CAFCASS case analysis which was prepared under Section 7 of the Children Act 1989. The report listed the findings that were made in a reductive way, which concerned the Court. The report was not reflective of the findings that were actually made and the Court stated that there was a real danger in reducing bespoke, detailed and subtle findings made by a judge to one or two worded labels.
- “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 to 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.”
Full Judgment can be found at: https://www.bailii.org/ew/cases/EWCA/Civ/2022/468.html
P (Children)(Disclosure)  EWCA Civ 495
Judgment handed down by Lord Burnett of Maldon CJ, Lord Justice Peter Jackson and Lord Justice Baker
The Court of Appeal dismissed a Father’s appeal for protection from the possibility of any admissions or incriminating evidence being used in criminal proceedings.
Background: The Father (F) had been the subject of private law proceedings where serious findings, including of rape of the Mother (M), had been made against him. F and M were then in dispute about the contact arrangements for their two children. M seeks an order that F should be deprived of parental responsibility. F seeks an order for contact.
The basis of F’s appeal was that although he has the right not to incriminate himself in any further family proceedings, he was concerned he may have to in order to persuade the Court to allow him to have contact with his children. He applied for an order – “that any statements or admissions made by him in the proceedings, in reference to the findings that have been made by the court, will not be disclosed to the police (or, by extension, to the CPS).” F considered that the proceedings that will determine child contact arrangements will be unfair (within the meaning of Article 6 ECHR) unless he incriminates himself and is given the protection he seeks.
The Court considered the privilege against self-incrimination (also referred to as the right to silence) – it is a common law right which prevents a person from being required to give evidence against themselves (Section 14 of the Civil Evidence Act 1968). Further, the Court considered the principles of disclosure to third parties in family proceedings (Re EC (Disclosure of Material)  2 FLR 725). It was made clear by the Court that admissibility of material in a criminal trial would be for the criminal court to determined.
- Admissibility of family proceedings in criminal proceedings is included in Criminal Justice Act 2003 and Police and Criminal Evidence Act 1984.
If the F’s contention that his participation in family proceeding would be unfair without the immunisation of its use in criminal proceedings was true, then Section 98 of Children Act 1989 would be incompatible with Article 6 of the ECHR. The Court did not accept that Article 6 confers such a wide-ranging protection on a private law family litigant. The Court saw no supporting authority.
The Court stated that there is nothing unfair in expecting F to make his case and that the existing protections would ensure that the family law proceedings would be fair. Further, the contention put forward by the F would risk undermining the rule of law.
The Court dismissed the application on the basis that:
- It was premature to consider a question of disclosure to the police without knowing the content of any statement or admission in respect of which the question arose;
- It was inappropriate to fashion the wide protection sought by F by analogy with the more limited protected provided in public law proceedings by section 98 of the Children Act 1989.
Full Judgment can be found at: https://www.bailii.org/ew/cases/EWCA/Civ/2022/495.html
Griffiths v Tickle & Ors (Re Disclosure by Counsl for Appellant and Application by First Respondent)  EWCA Civ 465
Judgment handed down by Lord Justice Warby.
An appeal concerning a judgment that was published without anonymising the Mother and the Father concerned. The Court of Appeal upheld the decision and dismissed the Father’s appeal against the same. The Court did not deem contempt of court proceedings necessary or proportionate. They considered it a careless breach and reminded lawyers of their professional responsibility to abide by the rules.
Background: The case was about a fact-finding in Children Act proceedings and the issue was whether it was appropriate for the judgment to be published without anonymising the Mother (M) and Father (F) concerned. On 10th December 2021, the decision to publish the judgment was upheld by the Court of Appeal and the appeal by F was dismissed. The Court separately considered ancillary questions reading F’s counsel disclosing appeal papers to non-parties without the permission of the Court.
In regards to the “Disclosure,” there were two issues – the propriety of the Disclosure and the application by the first respondent (Ms Tickle) for permission to report aspects of a note about the Disclosure and a witness statement, both provided to the Court by F’s counsel.
The Court considered the Disclosure as a significant breach of confidentially – there should be no such disclosure without the Court’s permission and counsel should have realised this. As there was limited harm caused by the breach, the Court considered it to be a careless one rather than a deliberate one.
In respect of the application by Ms Tickle – the relevant proceedings had taken place in public and the Court had dealt with the issues that arose from the Disclosure. The Court stated that there was no longer a reason why the documents should not be subject to the ordinary principles of open justice.
The Law: Section 12 of the Administration of Justice Act 1960 and the Family Procedure Rules were considered by the Court.
“42. Children Act proceedings are generally conducted in private, on the basis that this is necessary to protect the welfare of the child.
- Section 12(1) AJA makes provision about the publication of information about such proceedings. This covers the publication of accounts of what has gone on in front of the judge, and the publication of documents such as transcripts of judgments, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings. Publication of such information may be a contempt of court. But by virtue of s 12(4) AJA, it will not be punishable as contempt if it is authorised by rules of court. Rule 12.75 of the Family Procedure Rules provides for some kinds of communication to be authorised by default. And the Court can authorise a disclosure that would otherwise be at risk of amounting to a contempt of court.”
A disclosure of information that falls within s12(1) of the Administration of Justice Act 1960 which is not authorised by the FPR or by an order of the court may be a contempt of court.
Counsel on behalf of Mr Clayton (F’s counsel) made submissions as to why action need not be taken against Mr Clayton. In conclusion, whilst there was doubt as to whether the disclosure of the order granting permission to appeal contained information within s.12(1), the skeleton argument did. It was not argued that s.12(4) applied to the Disclosure. The Disclosure was not authorised by the rules of Court, not did the Disclosure fall within the specified categories of FPR 12.73 or 12.75.
The Court stated that a contempt of court may have occurred when Mr Clayton disclosed the skeleton argument, however, contempt proceedings under SPR 81.6(1) were not considered necessary or proportionate. The matter was not trivial and lawyers should remember they have a professional responsibility to inform themselves of the rules and to abide by them.
Full Judgment at: https://www.bailii.org/ew/cases/EWCA/Civ/2022/465.html