Melissa Vaughan is a member of Oriel Chambers family law team.
Here Melissa provides a brief outline of the decision made in A v K (Appeal: Fact Finding: PD12J) [2024] EWHC 1981 (Fam)
Mr Justice Cobb made a decision relating to a mother’s appeal against a decision not to hold a fact-finding hearing within private law proceedings. The appeal was dismissed.
This case outlines several important points to consider when the court is deciding on whether to hold a fact-finding hearing:
1. FPR 1.2 requires judges to deal with cases in a way which is proportionate to the nature, importance and complexity of the issues in the case.
2. The fundamental decision to hold, or not to hold, a fact-finding hearing is also located, albeit not explicitly, in FPR 1.4(2)(c)(i) which is a cornerstone of the rules. It requires judges to decide promptly which issues need investigation and a hearing and which do not.
3. Litigants should expect issues to be tried 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 those which it is necessary for the court to hear.
4. There is a duty on the court to keep under constant review whether there is a necessity to hold a fact-finding hearing in line with Re HN and K v K.
5. Cases involving disputed allegation of domestic abuse are some of the most difficult with which the family court judges must grapple with. They are particularly difficult at the case management stages because decisions with significant implications for the future conduct of the hearing, and of the family’s life, are called for; these are acknowledged at the highest level not to be straight forward.
6. Judicial continuity (where possible) is key in domestic abuse cases.
7. Judges should always consider retaining a case listed before them which contains allegations of domestic abuse. In this case, there was an obvious difficultly in that it had a lack of judicial continuity which contributed to the lack of consistency in the decision making.
8. When presented with allegations of domestic abuse in private law proceedings, judges need to be astute to work out, ideally as early on in the proceedings as possible, what is, and is not, relevant to the precise welfare issues which require the courts adjudication.
9. Private law proceedings should not be used for either party to simply air their grievances or to seek some form of validation or vindication. This is not an opportunity to settle scores or for parties to pick over why the relationship broke down.
10. Judges should press the parties and/or their advocates by asking them directly ‘why do I need to determine this issue/these issues in this particular case’ and ‘what difference would it make to the welfare decision/outcome of this case in respect of this child if I were to find the allegation proven’.
11. It is important to maintain focus on the individual circumstances of each case.
Please read the full judgment for further details. This document is simply an outline of the most salient points.
If you would like any further assistance in any of the topics arising from this article, please do not hesitate to contact our clerks at clerks@orielchambers.co.uk
