DOMESTIC ABUSE and FACT-FINDING HEARINGS
This article considers the recent Court of Appeal case of Re H-N and Others (Children) (domestic abuse: findings of fact hearings)  EWCA Civ 448 which sets out guidance on matters relevant to the court process when considering domestic abuse and fact-finding hearings.
This article also considers the more recent case of AA v BB  EWHC 1822 (Fam), which is one of the first reported cases to consider the Court of Appeal’s decision in Re H-N.
On 30 March 2021, the Court of Appeal (The President of the Family Division, Lady Justice King and Lord Justice Holroyde) handed down Judgment in four appeals:
Each appeal related to a fact-finding hearing in the course of ongoing private law Children Act 1989 proceedings. The parties agreed to a conjoined appeal hearing as each case, although different, raised common issues and involved an allegation of domestic abuse by at least one parent against the other.
The Court of Appeal (‘the Court’) allowed intervention from interested parties on the wider issues and heard from Cafcass (First Intervenor): Women’s Aid, Women’s Aid Wales, Rape Crisis, and Rights of Women (Second Intervenor); Families Need Fathers (Third Intervenor); the Association of Lawyers for Children (Fourth Intervenor).
The appeals do not establish any new law or create a legally binding precedent. The Court’s focus was to consider the issues common to each appeal and to look more generally at the approach of the Family Court to issues of domestic abuse; in doing so the Court offered guidance on a number of specific issues which are most directly relevant to the court process.
While this note includes selected extracts from the Court of Appeal’s judgment (with emphasis in bold added by the writer, and numbers in square brackets relating to paras in the judgment), the reader is directed to the following link for the full judgment in this case: https://www.judiciary.uk/wp-content/uploads/2021/03/H-N-and-Others-children-judgment-1.pdf
DOMESTIC ABUSE AND THE FAMILY COURTS
The Court stated that in 2019/20 the Family Court received 55,253 private law applications, of which more than 40% were thought to involve allegations of domestic abuse. Of course, not every case involving alleged domestic abuse requires a fact-finding hearing and courts have a responsibility to decide whether or not such a hearing is necessary.
The Court spent time considering Family Proceedings Rule 2010: Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm (‘PD12J’) which sets out a step-by-step template of ‘what the Family Court or High Court are required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse’ .
The Court highlighted that para 3 of PD12J includes definitions for ‘domestic abuse’ ‘coercive behaviour’ and ‘controlling behaviour’ and that these include references to patterns of acts or incidents. The Court stated that ‘… [i]t is now accepted without reservation that it is possible to be a victim of controlling or coercive behaviour or threatening behaviour without ever sustaining a physical injury. Importantly it is now also understood that specific incidents, rather than being seen as free-standing matters, may be part of a wider pattern of abuse or controlling of coercive behaviour’.
COERCIVE AND/OR CONTROLLING BEHAVIOUR
In the case of F v M  EWFC 4, Mr Justice Hayden handed down a judgment which, the Court opined, ‘should be essential reading for the Family judiciary’. The Court added that, in addition to the case being an illustration of what is meant by coercive and controlling behaviour (albeit towards the higher end of such behaviour), Hayden J provided a valuable exercise ‘… 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. That guidance is relevant to the evaluation of evidence in the Family Court.’ 
The following is a link to the full judgment in F v M: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/4.html.
The following is a link to an article on F v M written my colleague, Ron Edginton: https://becket-chambers.co.uk/2021/03/03/coercive-and-controlling-behaviours-how-are-they-to-be-dealt-with-in-fact-finding-hearings-after-the-recent-case-of-f-v-m/.
The Court stated that ‘[t]he circumstances encompassed by the definition of ‘domestic abuse’ in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings … It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim.’ 
‘PATTERNS’ OF BEHAVIOUR & THE APPROACH TO BE TAKEN BY THE COURT
Having considered the damage coercive and/or controlling behaviour can cause to children, the Court moved to consider the approach to be taken by courts where a ‘pattern’ of ‘coercive’ and/or ‘controlling’ behaviour has been raised. Importantly the Court clarified that, while its judgment may be focused on controlling and coercive behaviour, the definition of domestic abuse refers to patterns of behaviour which includes all forms of abuse including physical and sexual violence and, as such, the Court’s observations apply equally to all forms of abuse.
The Court determined that there were several important issues which arise re the proper approach of the court to such cases, namely:
The Court highlighted that ‘[i]t is important for the court to have regard to the need for procedural proportionality at all times, both before and during any fact-finding process. A key word in PD12J paragraphs 16 and 17 is ‘necessary’. It is a word which also sits at the core of the President’s Guidance ‘The Road Ahead’ (June 2020) … in particular: ‘43. If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.’ 
The Court stated that:  ‘[t]he court will carefully consider the totality of PD12J, but to summarise, the proper approach to deciding if a fact-finding hearing is necessary is, we suggest, as follows:
i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).
ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.
iii) Careful consideration must be given to PD12J.17 as to whether it is ‘necessary’ to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.
iv) Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance as set out in ‘The Road Ahead’.’
The Court heard submissions from the parties as to the usefulness of Scott Schedules and re courts focusing on a list of specific incidents each tied by time and date (rather than on whether there had been a pattern of behaviour). The parties had also been required to limit the number of allegations to be tried.
The Court concluded that:
‘serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be. This is an important point. Everyone agrees.’ 
‘Quite how a move away from the use of Scott Schedules is to be achieved, and what form any replacement ‘pleading’ might take, does, however, raise difficult questions … A number of suggestions were made by the parties in submissions including; a ‘threshold’ type document, similar to that used in public law proceedings, formal pleadings by way of particulars of claim as seen in civil proceedings and a narrative statement in prescribed form’. 
‘The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties … It will be for others … to develop these suggestions into new guidance or rule changes.’ 
The Court noted that, until such time as there is new guidance or a change to the rules, cases of domestic abuse will continue to come before the courts and with an increased focus on controlling and coercive behaviour.
The Court determined that, where a party properly raises the issue of whether there has been a pattern of coercive and/or controlling behaviour, that ‘[i]t is the responsibility of the individual judge or bench of magistrates in each case to set a proportionate timetable and to maintain control of the court process where it has been determined that a fact-finding hearing is necessary. It is, however, our expectation that, in cases where an alleged pattern of coercive and/or controlling behaviour falls for determination, and the court has made that issue its primary focus, the need to determine a range of subsidiary date-specific factual allegations will cease to be ‘necessary’ (unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour).’ 
To assist, the Court offered the following pointers :
‘a) PD12J … is focussed upon ‘domestic violence and harm’ in the context of ‘child arrangements and contact orders’; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;
b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is ‘necessary’ in order to:
i) Provide a factual basis for any welfare report or other assessment;
ii) Provide a basis for an accurate assessment of risk;
iii) Consider any final welfare-based order(s) in relation to child arrangements; or
iv) Consider the need for a domestic abuse-related activity.
c) Where a fact-finding hearing is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be listed for determination;
d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.’
The Court stated that ‘[w]here one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of PD12J, paragraph 16, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).’ 
The Court confirmed that the ‘authoritative statement of the law in this regard’ is found in the Court of Appeal judgments of McFarlane and Hickinbottom LJJ in Re R (Children) (Care Proceedings: Fact-finding Hearing)  EWCA Civ 198;  1 WLR 1821, where the court held that, as a matter of principle, it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.
On 2 July 2021 The Hon Mrs Justice Judd handed down judgment in the appeal of an order made in private law Children Act 1989 proceedings. This is one of the first reported cases to consider the Court of Appeal’s decision in Re H-N.
The appeal was against a case management decision to exclude evidence from a fact-finding hearing in which there were cross-allegations of domestic abuse. Each party was directed to file a schedule limited to 5 allegations.
The start of the fact-finding hearing was delayed and the matter called on at 2pm. Father’s counsel raised preliminary points including that mother’s statement went beyond 5 allegations, that it added more detail and examples of the father’s alleged abuse towards her and the children, and that it exhibited a number of documents (including letters from professionals treating the oldest child and which set out allegations the child had made against the father). The mother also sought to rely on statements from the maternal grandmother and the nanny.
Due to time constraints, the fact-finding hearing was adjourned and the judge limited himself to case managements issues. The judge, in large part, acceded to father’s application and directed that mother should file a new statement. The judge allowed the grandmother’s statement (but stated the contents went far beyond the allegations in the Scott Schedule) and the nanny’s statement, but excluded documents include those from the professionals treating the oldest child.
In her appeal, the mother relied on the dicta of the Court of Appeal in Re H-N and of Hayden J in F v M regarding the limitations of Scott Schedules and the fact that the court focused on particular allegations rather than looking at patterns of overall behaviour.
In allowing the appeal, Judd J stated that:
‘The allegations beyond those in the Scott Schedule were not either inadmissible or irrelevant; quite the opposite’. .
‘There will be occasions when a judge refuses to admit relevant evidence produced at the last minute before a hearing, when, for example it is not highly significant in relation to the other evidence and/or it cannot be adduced fairly without an adjournment of the trial which will itself cause harm and delay for the child’. 
‘In this case, however, not only were the allegations highly significant but the hearing had to be adjourned in any event. The fact finding hearing was relisted … meaning there was time for the nature of scope of this to be considered at a further case management hearing …’ 
Judd J made directions and the matter was listed for a pre-trial review.
The following is the link to the full judgment in this case: https://www.bailii.org/ew/cases/EWHC/Fam/2021/1822.html