Family Law Hub

Fact Finding

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  • The father sought a child arrangements order while the mother opposed any direct contact. The mother alleged that she was the victim of the father's domestic violence and abuse. The case had engaged special measures, with a screen being used for the mother and the father being required to provide Willans J with his questions for her in advance, though Willans J expressed "grave reservations as to the resulting quality of evidence received". The allegations of rape and abduction were not found to be proven, while both mother and father were found to have sent inappropriate communications of a harassing nature to each other. Though the mother was found to have demonstrated implacable hostility, Willans J was not persuaded that the effects of this amounted to parental alienation. Consideration would now have to be given to whether contact could be re-established. The case needed to progress, and a Children's Guardian would be appointed prior to fixing a directions appointment. Judgment, 25/05/2020, free
  • The father sought permission to appeal out of time against a district judge's finding of fact that he had abused his daughter. Francis J decided that the findings were so unsafe and their consequences so series that they could not be allowed to stand, despite the exceptional delay in appealing. He noted with surprise the district judge's assertion that the mother's counsel could conduct the cross-examination of the expert witness on behalf of the litigant-in-person father as well as the mother, a suggestion which Francis J said was "incorrect and plainly wrong". The expert had not been cross-examined on his misunderstanding of a previous judgment in the case, and in failing to depart from the expert's view the district judge fell into further error. The procedure adopted was irregular enough to cause injustice within the meaning of FPR Part 30. Permission to appeal out of time was granted, the appeal was allowed and the finding of fact set aside. The matter would be remitted for re-hearing by a High Court judge of the Family Division. Judgment, 19/05/2020, free
  • The parties had been in dispute about the beneficial ownership of a valuable property. The former husband sought permission to appeal from findings of fact made in contempt of court proceedings. He contended that despite being an unrepresented litigant he had given evidence without being informed of his right to silence. Peter Jackson LJ found that the court could not be satisfied that no injustice had occurred. If the husband had been informed that he was not obliged to give evidence, he might not have done so. This was a procedural irregularity serious enough to justify the granting of permission to appeal, and the appeal should be allowed. Popplewell LJ agreed. Judgment, 17/03/2020, free
  • The parents had split up and the boy was living with his mother. The father had applied for a child arrangements order. This was a fact-finding hearing with regard to allegations which, according to HHJ Tolson QC, would not "in the ordinary course, have had very much to say for the future" in terms of the boy's welfare. These included allegations of coercive control and that the father had raped the mother. The judge said that "the enquiry into this allegation of rape is fraught with difficulty" and that he did "not see why the mother could not, should not, have made life difficult for the father" during the events, while also noting that the mother would "often tell the father to stop". The judge's findings were that the sex was consensual, and more generally that the father was not coercively controlling. This decision was successfully appealed in JH v MF [2020] EWHC 86 (Fam), where Russell J DBE stated that the judge had employed "obsolescent concepts concerning the issue of consent". Judgment, 24/02/2020, free
  • An appeal against findings of fact at a hearing concerning complaints of domestic abuse and sexual assault. Russell J DBE found that there had been serious procedural irregularities at the hearing, such as ordering that the appellant gave evidence from counsel's row rather than behind a witness box. She also found that the judge's approach to fact-finding was so flawed as to lead to the conclusion that it was unsafe and wrong. He had failed to take into account relevant material as to the parties' relationship, including reports of aggressive, criminal and violent behaviour on the respondent's part. She held that the resulting judgment was flawed for a multiplicity of reasons, including that the judge failed to consider that the respondent's anxious presentation might be the result of previous abuse by the respondent. Other comments by the judge reflected a failure to consider or appreciate the reality of domestic abuse, control and coercion. The judge had concluded that sexually threatening texts were consistent with "sexting", though this had not been the respondent's case and was not put to the appellant. The judge's approach to the issue of consent, relying on his view that the appellant had not physically fought off the respondent, was "manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct". It could not be lawful or jurisprudentially apposite for the Family Court to take an approach so much at odds from that which applies in the criminal jurisdiction. The case was remitted for retrial, and a formal request would be made for those judges who might hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that provided to criminal judges. Judgment, 23/01/2020, free

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