Melissa Vaughan is a member of Oriel Chambers Family Team

Here Melissa Vaughan provides a case law update.

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K v K [2022] EWCA Civ 468

The Court of Appeal allowed an appeal against the outcome of a fact-finding hearing in private law proceedings and gave general guidance about the approach to such hearings in light of Re H-N [2021] EWCA Civ 448.

Background:

The proceedings concerned a girl, now 12, and twin boys of 9. After the parent’s separation in August 2017 the father had regular unsupervised contact until logistical issues led to arguments between the parents. In early 2018, the eldest child refused to see father, but the twins continued to do so, staying overnight on alternate weekends. There were disagreements over the arrangements leading to WhatsApp exchanges in June 2019 in which father expressed his frustration and threatened to start proceedings. Contact was thereafter restricted by the mother to just daytime contact. Father issued an application for child arrangements order in December 2019, claiming the urgency of Christmas arrangements as a reason for bypassing MIAM. Mother filed a C1A making some minor allegations against the father but not objecting to unsupervised contact.

The Cafcass safeguarding letter which referred to further allegations having been made by Mother, including rape and coercive control, said that a fact-finding hearing should be considered.

At the FHDRA the Judge read the safeguarding letter as recommending a fact-finding hearing and decided that there should be one. He ordered that father should have supported daytime contact only in the interim. That contact only happened for a few months before the pandemic intervened and the children did not see their father from April 2020.

Findings against the father were made at the fact-finding hearing. At the final hearing, following a Cafcass report, a final order was made for monthly indirect contact only.

The Appeal

At the first appeal, a Circuit Judge upheld the District Judge’s findings.

The second appeal was to the Court of Appeal. It was found that the District Judge had fallen into error by not taking a step back and considering the evidence as a whole and by placing undue weight on particular pieces of evidence, the finding that father raped mother was unsafe.

In respect of the other allegations the order that recorded the outcome of the findings of fact contained significant inaccuracies, for example stating that the District Judge had found father to have physically abused the children when he had not.

The District Judge ought to have considered all the allegations in the context of whether father had displayed coercive control affecting the children AFTER the marriage had ended. The appeal judges were surprised that the judge found controlling behaviour after the split mainly based on the June 2019 WhatsApp messages which were all sent on one day.

General Guidance

The following key principles were set out:

1. MIAMs should not be bypassed unless there is a genuine reason. The court should, in accordance with FPR part 3 consider at every stage whether non-court dispute resolution is appropriate and should scrutinise the validity of any MIAM exemption claimed. In this case the exemption was not properly claimed, which should have picked up at or before the FHDRA.

2. FHDRAs should be used as intended; their ‘essential purpose is an opportunity for judicial led dispute resolution.’ In this case it is possible that matters could have been resolved consensually at the FHDRA, given that M had said in her C1A that she did not object to unsupervised contact.

3. The judge considering whether to list a FFH must firstly identify the child welfare issues to which such fact-finding is relevant, understand the nature of the allegations and consider whether the facts alleged are relevant to the identified welfare issues. Careful consideration must be given to whether a FFH is necessary and proportionate. In this case, it was premature to direct one at the FHDRA without a full understanding of the allegations being pursued.

Outcome

As the most serious of findings are unsafe the case was remitted to a Circuit Judge to consider in the light of the principles set out in Re H-N and this judgment, whether a fresh fact-finding hearing is justified. The parties were also urged to consider whether compromise is possible in the interests of the children.

The Court of Appeal has reminded parties and advocates that the FHDRA should not become a hand-waving exercise where allegations are simply identified, timetabled, and litigated upon. Rather, there must be some proper engagement with the allegations, their relevance to the issues going to welfare, and the proportionality of determining those issues (bearing in mind that the court’s purpose is not to litigate a relationship).