Family Law Hub

Fact Finding

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  • A fact-finding exercise within an application for a child arrangements order with regard to the younger of two half-brothers. The only evidence had been from the parents. The mother had accused the father of grabbing her by the threat, punching her, and emotionally abusive and controlling behaviour. In HHJ Robin Tolson QC's view, "the individual allegations of domestic violence in the Schedule advanced by the mother against the father were insignificant in themselves", and unlikely to affect child arrangements. It was also, he said, "necessary to factor in the effects of a system which encourages allegations of domestic abuse", as well as the mother's mental health issues. On the morning of the trial, the mother had added an allegation of rape. HHJ Robin Tolson QC found that everything turned on the credibility of the witnesses, and none of the allegations were proven beyond limited admissions made by the father. Those admissions did mean, however, that the mother was "a victim of domestic abuse". He decided that a guardian should be appointed for the child, and a direction was made for the relevant local authority to undertake an investigation of both children to determine whether public law proceedings should be issued. By consent, he directed a psychiatric assessment of the mother. He also made an order for the child to spend time with his father, supervised by an independent social worker, once the international quarantine rules permitted it. Judgment, 12/04/2021, free
  • The issue to determine was how much the four-year-old daughter should see of her father. The mother had alleged domestic abuse and rape. HHJ Tolson QC said it might be thought that the allegations "could have been safely consigned to the past", given that "at the time of the first allegation the mother was not even pregnant with [the daughter]" but in "the era in which we now operate … such allegations are invariably taken very seriously". He invited "both parents and everyone involved in the case to recall that all we are about is establishing, if possible, a good relationship between a little girl and her father" and the allegations of rape, which he described as "limited non-consensual sex", "would have, in my judgment, almost no implications at this stage for the future development of the relationship between the father and [the daughter]". He found that the mother's allegations of the first incident were "deeply unconvincing stuff", which meant that in his view he was "faced with a dishonest witness and it is a very long step indeed to my accepting the accuracy of her version of events" as to the second alleged incident. He reached the conclusion that the events did not happen, while the alleged "financial abuse and emotional abuse and harassment, have not been investigated during this trial" and had "no implications for the future child arrangements in the context of this case". His conclusion was that "there are no relevant findings which amount to any risk to the child or indeed any risk to the mother herself", and so the way was now clear "to develop the father's relationship with [the daughter] into one where there is a normal relationship between a separated father and his daughter". He provided for a further hearing, should agreement between the parties prove impossible. A later note stated that the parties had reached agreement and an order by consent had been made. Judgment, 06/04/2021, free
  • The parties had married in 2011 but separated a year later, when the mother was pregnant with their child. The father appealed against findings of fact that he had (i) raped the mother twice whilst she was in bed with their young child, (ii) emotionally abused the mother, and (iii) threatened to abduct the child. The appeal focused on what was said to be the failure by the judge to consider the allegations in their totality. Criticism was made of her decision not to consider and weigh the evidence in respect of, or to balance in her decision-making, the evidence relating to a number of core allegations made by the respondent. Complaint was made that she had compartmentalised the evidence and that she had failed to consider properly the appellant's case that the allegations against him had been fabricated. Roberts J reached the conclusion that the judge's findings could not stand, not necessarily because she was wrong, but because of the manner in which she appeared to have reached those conclusions. The reasoning was insufficient to explain how the judge had conducted her assessment of credibility and which matters she had, or had not, weighed in the balance when reaching her conclusions. In a case where one party was alleging that allegations had been fabricated as part of a course of conduct designed to marginalise a parent from the life of a child of the family, it was incumbent on the fact-finder to explain carefully why that case was rejected. That had not happened in this case. The appellant had been left with the impression that his case had not received the careful consideration which it deserved. The appeal was allowed, the findings set aside, and the matter would be remitted for an early rehearing. Judgment, 05/04/2021, free
  • The Court of Appeal (the President of the Family Division, King LJ and Holroyde LJ) was concerned with four appeals in ongoing Children Act 1989 proceedings involving allegations of domestic abuse by one parent against the other. The decisions on the appeals, the court explained, turned on long-established principles of fairness or the ordinary approach to judicial fact-finding, and none purported to establish new law, or to establish any legally binding precedent. However, the court noted, at least 40% of private law children cases now involved allegations of domestic abuse, about 22,000 cases each year, and so the court took the opportunity to give more general guidance about such matters, such as the proper approach to deciding whether a fact-finding hearing was necessary, and whether, where domestic abuse was alleged in proceedings affecting the welfare of children, the focus should in some cases be on a pattern of behaviour rather than specific incidents. It noted that there had been effective unanimity in submissions to the court that the value of Scott Schedules in domestic abuse cases had declined to the extent that they were now a potential barrier to fairness and good process, rather than an aid. Reducing the focus to a limited number of events created the risk of the court losing the vantage point needed to consider whether there had been an overall pattern of coercive and controlling behaviour. The appeals in Re B-B and Re T were allowed, and the matters remitted to different judges. The appeal in Re H-N was allowed and the matter was remitted to the Designated Family Judge at the Central Family Court for further case management. The appeal in Re H was dismissed. Judgment, 31/03/2021, free
  • The parents had lived together for twelve years. During previous proceedings regarding contact with their two children, the mother had alleged domestic abuse on the father's part, both towards her and towards a subsequent partner. Following a conviction for assault on a third partner, he applied to enforce an order for contact, in response to which the mother raised the issue of his violent behaviour towards multiple partners. The district judge found that there had been domestic abuse, but later recused herself after realising that her son and the mother were members of the same sports club. The judge then agreed to re-open the district judge's earlier findings of fact on the basis of apparent bias. The mother appealed with regard to the recusal and the decision to re-open the findings. Peter Jackson LJ found that the judge's decision had been both wrong and unfair. The district judge had not discovered that her son and the mother knew each other until months after her findings of fact had been made. King and Phillips LJJ agreed. The father's application was dismissed, and the proceedings were remitted for the welfare decision to be taken on the basis of the district judge's findings of fact by another circuit judge. Judgment, 17/12/2020, free

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