K. v. K – Updating guidance on fact-finding hearings in private law proceedings

In the recent case of K v. K. [2022] EWCA Civ 468 the Court of Appeal has provided some useful updating guidance in respect of the proper approach to fact-finding hearings in private law proceedings following the decision in Re H-N [2021] EWCA 448.

The case itself concerned the mother’s allegations of controlling behaviour, verbal abuse, physical abuse of the children, financial control and rape. The father had also made allegations of emotional, psychological and financial abuse against the mother. Interestingly, the children had continued to have contact with their father for some time following their parents’ separation. Furthermore, the mother’s C1A form had recorded that the mother agreed to the father having unsupervised contact. The mother had also acknowledged in an email to a police officer the importance to the children of their relationship with their father and that she would not prevent contact unless the children were distressed or refused to see him.

In giving its judgment, the Court of Appeal stressed the importance of: (a) the requirement in rule 3.3(1) of the Family Procedure Rules 2010 to consider, at every stage in the proceedings, whether non-court dispute resolution is appropriate, and (b) in particular, for proper consideration to be given to the possibility of non-court dispute resolution at the First Hearing and Dispute Resolution Appointment (“FHDRA”).

In a punchy judgment, the Court of Appeal emphasised that a fact-finding hearing is not free-standing litigation, it should not be allowed to become an opportunity for the parties to air their grievances and it is not a chance for parents to seek the court’s validation of their perception of what went wrong in their relationship. A fact-finding hearing has to be necessary and proportionate.

The Court of Appeal emphasised that, without resiling from what had been said about the “pernicious nature” of domestic abuse in Re H-N, a fact-finding hearing is only needed if the alleged abuse is likely to be relevant to that the court is being asked to decide relating to the children’s welfare.  Sir Geoffrey Vos, Mast of the Rolls, giving the judgment of the court described a decision to hold a fact-finding hearing as being “a major judicial determination within the course of family proceedings” [at paragraph 42]. He went on to say that the process inevitable causes delay and that the litigation of factual issues between parents is likely to be adversarial and have a negative impact upon the parents’ ongoing relationship and ability to cooperate with each other.

In this particular case, the Court of Appeal was critical that the issues concerning welfare had not been properly identified or analysed by the judge at the FHDRA and that at no stage did the court consider how such facts as might be found were relevant either to the welfare of the children or to the issues that the court was being asked to resolve. The judge had concluded too soon that a fact-finding hearing was required before the mother had properly identified the allegations that she wished to pursue and before disclosure of relevant material had been obtained.

The case provided a clear example of the need for a court to focus on the overarching issue of coercive and controlling behaviour when raised and to do so only to the extent that it was relevant to determine issues as to a child’s future welfare. The Court of Appeal observed that where the focus is on coercive and controlling behaviour as the primary issue, it would be generally unnecessary to determine every other “subsidiary date-specific factual allegations”. In my interpretation, that is very much a call for courts to look at the wider picture rather than to get bogged down in the mire of detailed and very specific allegations.

The Court of Appeal found that the trial judge’s finding of rape was unsafe and should be set aside. It also expressed it surprise that findings of controlling behaviour had been made. The overall conclusion of the Court was that the whole of the fact-finding judgment was unsafe and it would be set aside and the case remitted to a Circuit Judge for a decision about whether a fresh fact-finding hearing was required.

As always, a full reading of the judgment is recommended.