This article explores the case of B v P  EWFC B18, a successful appeal against the outcome of a fact-finding hearing held before a District Judge in private law proceedings. It is another example to practitioners to be alert to allegations of domestic abuse and understand the approach that should be taken.
B v P  EWFC B18
The case of Re B v P is a case on appeal, following an order made at a fact-finding trial in Children Act (CA) 1989 proceedings. The proceedings concerned two children, A aged 9 and B aged 7. The application was made by the Father (F) for enforcement of a child arrangements order made on 3 October 2019. The Mother (M) responded by applying for variation of that order, making allegations of domestic abuse. This article will not repeat the background of the case. Suffice to say there were several allegations including physical abuse, denigration, and failure of F to protect A. The Local Authority had been involved.
The fact-finding hearing was fully remote. The District Judge heard evidence from the parents, M’s brother, and a social worker. However, there was no ground rules hearing, and from the transcript, no consideration of special measures. M was represented and F was not. There were no submissions made to address the procedural issues raised in this appeal. As far as HHJ Levey could tell, the District Judge was not referred to the need for a ground rules hearing, Part 3A of the FPR, practice directions 3AA or 12J; nor was she referred to the definition of domestic abuse and she was not reminded of the decision in Re H-N  EWCA Civ 448.
At the fact-finding hearing the District Judge broadly found most of M’s allegations not proved. In respect of F’s allegations of breach, she found some proved, some not proved, and others that M had a reasonable excuse. M appealed.
The appeal was successful. HHJ Levey concluded that the earlier decisions cannot stand because of serious procedural irregularity.
HHJ Levey found the fact-finding hearing to have erred in the following respects:
- The District Judge was found to have made ‘significant omissions’ in her judgment in not referencing Part 3A FPR, Practice Directions 3AA or 12J, or the definition of domestic abuse in a case where such issues were critical [para 47]. The absence of a PD3AA ground rules hearing to consider whether any special measures needed to be in place led to unsatisfactory aspects to the fact-finding hearing, such as the parties being able to observe each other throughout and F at times addressing M directly [para 45]. HHJ Levey considered such factors rendered the fact-finding decision unsafe as they raised significant concerns as to whether M could have participated effectively in the hearing [para 50]. At [para 44] it was made plain that the duty to consider whether special measures are necessary and if so, what they should be, lies with the Court. Although emphasised, “even though one would hope and expect that the appellant’s counsel would have raised these matters before the hearing started.”
- The District Judge did not follow the approach suggested in Re H-N and Others (Domestic Abuse: Finding of Fact hearings) EWCA Civ 448., and instead approached the allegations one at a time, without standing back to consider the overall picture and the nature of the behaviour as a whole. The District Judge did make some significant findings against the father which should have led her to consider whether his behaviour was coercive or controlling or not.
- It was a procedural irregularity for the District Judge to have made findings to the criminal standard that M had breached the child arrangements order without putting those allegations to her in cross-examination. It was not a fair process to make findings on allegations without allowing M the opportunity to respond to them [para 73].
If in any case it is alleged, admitted or if there is reason to believe that a child or party has experienced or is at risk of experiencing domestic abuse, PD12J Family Procedure Rules 2010 applies. Domestic abuse is defined in paragraph 2A as including any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence, or abuse. The range of behaviour addressed is wide and includes psychological, physical, sexual, financial, or emotional abuse. Re H-N acknowledged the need for the court to concentrate on the wider context of a pattern of behaviour as opposed to a list of specific factual incidents, which are often set out in Scott Schedules.
Rule 3A and PD3AA set out the rules in relation to vulnerable witnesses.
When considering the vulnerability of a party or witness as mentioned in rule 3A.4 or 3A.5, the court must have regard to the matters set out in paragraphs (a) to (j) and (m) of rule 3A.7.
Practice Direction 3AA gives guidance about vulnerability.
The court must consider whether a party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.
Before making such participation directions, the court must consider any views expressed by the party about participating in the proceedings.
The court must consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.
Before making such participation directions, the court must consider any views expressed by the party or witness about giving evidence.
When deciding whether to make one or more participation directions the court must have regard in particular to—
(a)the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of—
(i)any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or
(ii)any members of the family of the party or witness;
(b)whether the party or witness—
(i)suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;
(ii)has a physical disability or suffers from a physical disorder; or
(iii)is undergoing medical treatment;
(c)the nature and extent of the information before the court;
(d)the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;
(e)whether a matter is contentious;
(f)the age, maturity and understanding of the party or witness;
(g)the social and cultural background and ethnic origins of the party or witness;
(h)the domestic circumstances and religious beliefs of the party or witness;
(i)any questions which the court is putting or causing to be put to a witness in accordance with section 31G(6) of the 1984 Act( );
(j)any characteristic of the party or witness which is relevant to the participation direction which may be made;
(k)whether any measure is available to the court;
(l)the costs of any available measure; and
(m)any other matter set out in Practice Direction 3AA.
Paragraph 2.1 of PD3AA makes clear that when considering the question of vulnerability, the abuse referred to in rule 3A.4 includes, inter alia, domestic, sexual, physical and emotional abuse. In circumstances where the court is satisfied that a vulnerable party or witness should give evidence, PD3AA requires a ground rules hearing (or ground rules component of a hearing) before that person gives evidence (PD3AA, para. 5.2).
The hearing before the District Judge took place before the Domestic Abuse Act 2021 was passed into law. The forthcoming changes in legislation will help to ensure that a respondent in a case such as this has a barrister assigned to put questions to an applicant which may ameliorate some of these issues. It is imperative in ensuring that a fair trial takes place, that a witness feels able to provide the court with evidence. Failure to provide a witness with the opportunity to give clear and coherent evidence, particularly when such a witness is vulnerable, can lead to unsafe findings.
This is not the first time such a matter has been highlighted. Although HHJ Levey places the burden on the court to ensure that ground rules hearings are taking place and PD3AA being complied with, I believe it is crucial as advocates, in acting in the best interests of clients, to be alert to these issues and raise them to assist the court.