Firstly, the question of whether the factual matters that have been, or may be, the subject of a criminal prosecution should also be litigated within family proceedings is always to be determined on a case-by-case basis. Secondly, a fact-finding hearing should only be embarked upon where it is both necessary and proportionate to do so. The guidance at paragraphs 16,17, 36 and 37 of the recently updated Practice Direction 12J FPR 2010 are of relevance when the court has to decide whether to conduct a fact-finding process in relation to ‘domestic abuse’ or any other potentially criminal activity in any proceedings relating to the welfare of a child. Thirdly, the Court must always have regard to the overarching purpose of public law proceedings of: (a) establishing whether the section 31 threshold criteria are satisfied, and (b) determining the future plan for the child’s care by affording paramount consideration to his or her welfare.
In R (Children)  EWCA Civ 198 the Court of Appeal has given helpful updating guidance on the approach the family court should take when trying, or re-trying, factual issues in public law proceedings which could also be framed as criminal charges. The conclusion of the court (a majority decision on this point) was that it is fundamentally wrong for the family court to be drawn into an analysis of factual evidence based upon criminal principles and concepts. In simple terms, the function of the family court judge is to find the facts. Any facts that are found then form the basis of a more wide-ranging assessment of any consequent risk to a child whose future welfare needs will then fall to be determined.
Paragraph 82 of McFarlane LJ’s judgment contains a useful summary of the relevant points.
The case concerned a fact finding hearing within child care proceedings. The mother of two young children had tragically died as a result of a knife wound to her neck that had been inflicted by the father of the children. As a result, the father had been arrested and charged with murder but he was subsequently acquitted prior to a fact finding conducted before Theis J. She made a finding within the care proceedings that the father had “used unreasonable force and unlawfully killed the mother” which the father appealed.
At the fact finding hearing the local authority had presented its case on the killing in the terms of the criminal law. This was the case that the father understood he had to meet and was said to have plainly been the mind set of all the legal teams and the judge. By the time of the appeal hearing and as a result of the intervention of the court, all the parties accepted that the structure and substance of criminal law should not be applied in the family court and that the judgment as a whole could not stand. For a number of reasons (some not relevant to this article) the appeal was allowed and the case remitted to the family court.
The respective roles of the family and criminal courts had been previously been the subject of limited judicial pronouncement. In Re U (Serious Injury: Standard of Proof); Re B  EWCA Civ 567 the then President, Dame Elizabeth Butler-Sloss, had commented that it by no means followed that an acquittal on a criminal charge of successful appeal would lead to the absolution of a parent or carer in family proceedings. In A Local Authority v. S, W and T  EWHC 1270 (Fam) Hedley J. had compared the task facing a jury and that of a judge in family proceedings. The jury had to be sure of guilt. The family judge has to determine the probabilities and give detailed reasons for his view, possibly having heard a much wider range of evidence than would have been admissible in a criminal trial.
In his judgment, McFarlane LJ made plain what the purpose of a fact finding hearing is in the family court. He said this:
“The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination of facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare.”
Whereas in criminal proceedings, the outcome of the litigation will be binary in nature (either ‘guilty’ or ‘not guilty’), in family proceedings the outcome of a fact finding hearing will normally be a narrative account of what the court has determined has happened in the lives of a number of people, and, often over a significant period of time. The primary purpose of the family process is to determine what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established.
Given the wider range of evidence available in family proceedings and the lower standard of proof McFarlane LJ was crystal clear that that it would be meaningless for the family court to make a finding of ‘murder’ or ‘manslaughter’ or ‘unlawful killing’. For him, the potential for such findings to be misunderstood and to cause profound upset and harm was all too clear. Furthermore, to try and deploy the criminal law directly into the analysis of evidence at a fact finding hearing could mean the process becomes unnecessarily bogged down in legal technicality, over-complicated and side-tracked from the central task of simply deciding what happened and what is the best future course for a child.
On a more practical note, McFarlane LJ stated that it was important that the language of the judgment should avoid using specific words or phrases that have a bespoke meaning in the context of the criminal jurisdiction, such as ‘self-defence’, ‘reasonable force’ or ‘the loss of self-control’. Phrases such as ‘inappropriate force’ or ‘proportionate force’ may reflect the judge’s findings in a particular case and avoid the risk that the finding was based directly upon criminal law principles.
In her dissenting judgment, Gloster LJ felt that a court could have real difficulty in determining whether the appellant father’s conduct was “reasonable” without regard to, or applying, criminal law concepts of self-defence, reasonable force and loss of self-control. She suggested that by what other standards could the court consider whether the father’s past conduct or any future risk be evaluated other than by the relevant criminal standards. What other guide would the trial judge have to determine whether the father’s killing of the mother was blameworthy, unreasonable or inappropriate?
Whilst this case provides further guidance to the practitioner, the judicial disagreement amongst the members of the court hearing the appeal demonstrates that this may not yet be the last word on this subject.