Domestic Abuse: Fact Findings and Dispute Resolution in Children Proceedings – K v K Appeal Judgement 2022

Last month the Court of Appeal handed down  Judgment in the case of K v K. This was a much anticipated Judgment with practitioners awaiting further guidance on the management of domestic abuse cases and particularly in respect of fact finding hearings since the H N and Others Appeals last year.

Background

The proceedings concerned a girl, now 12, and twin boys of 9. The parents separated in August 2017 and the father had regular unsupervised contact at that time. This continued until the parents began to disagree about the logistical arrangements for contact.

In early 2018, the daughter refused to see her father but the twins continued to have contact every other weekend overnight, even after the father moved 130 miles away. There were disagreements over the arrangements as the father sought to change the weekends on which he had contact due to not having a car to transport the children to contact on the weekends he was currently scheduled to have the twins. The mother had already booked to work on the weekends that the father had been due to have contact, and was unable to change this without giving a period of notice.

These practical difficulties set the context for an exchange of WhatsApp messages.

The Judgment records:

Whilst the messages demonstrate increasing frustration by the father exemplified by his threats to issue proceedings if the matter was not resolved, it is of note that the mother clearly said: “I have said I will swap weekends within the next couple of months[;] I have never denied access to the children”.

Contact arrangements changed and the father issued a C100 application to regularise contact in December 2019. He did not make a referral for a Mediation Information & Assessment Meeting (MIAM) citing the urgency of Christmas arrangements as a reason for bypassing that requirement. Mother lodged a C1A making some allegations against the father but not objecting to unsupervised contact. The father also submitted a C1A, alongside his C100 application, making allegations of emotional, psychological and financial abuse against the mother.

Cafcass prepared a safeguarding letter which recorded allegations made by Mother in 2018: “rape, financial, physical, mental and controlling behaviours” and suggested that a fact-finding hearing (FFH) be considered.

At the First Hearing and Dispute Resolution Appointment (FHDRA), the judge interpreted the safeguarding letter as recommending a FFH and determined that there should be one. The Judge ordered supported contact during the day, once per fortnight, either with an agreed third party or at a contact centre. In fact, the pandemic then struck and stopped direct contact.

On 25 November 2021, a final order was made that the father should have only indirect contact once per month. The children have therefore not seen their father for over two years (save between January and April 2021 at a contact centre).

Findings were made at the FFH; and at the final hearing at which a Cafcass report was considered, a final order was made for monthly indirect contact only.

The Court of Appeal Decision

This was actually the second appeal. A Circuit Judge considered the first appeal and upheld the first instance decision. 

The Court of Appeal found that the judge (rather than making that decision at the FHDRA) should have:

(a) identified the issues between the parents as to the children’s welfare, and (b) given the mother time to decide, with the benefit of legal advice, what factual findings she wanted to contend required to be decided by the court, because they were “likely to be relevant to any decision of the court relating to the welfare of the child”.

The Findings?

They found that the finding of rape was unsafe and must be set aside. It was felt that the District Judge had failed to step back and take into account the whole of the evidence before him, and by doing so he placed unjustifiable weight on the issue of whether the mother had had a conversation with the father and elevated that issue into the determinative one, saying that if it were proved, the allegations would themselves be made out.

Father’s challenges were not brought into his analysis, meaning that there could not be said to have been a fair consideration of these important allegations from the father’s perspective.

What is the consequence of the Court of Appeal’s determination?

The consequence of the Court of Appeal’s determination is set out as:

“We have concluded that the findings in relation to the most serious allegations 1-3 are unsafe. As a result of that and the other matters we have identified, the fact-finding judgment and the schedule to the judge’s order dated 25 August 2020 must be set aside. The matter will be remitted to a Circuit Judge for a decision to be made as to whether a fresh fact-finding hearing is required on the basis of the principles set out in Re H-N and this judgment. We reiterate also, as we did at the end of the hearing, that the parties should now consider whether there is room for compromise in the best interests of their children.”

What can we take from the Judgement?

• Section 10 of the Children and Families Act 2014 (the CFA 2014) requires that before making a relevant family application, a person must attend a family mediation information and assessment meeting. A MIAM is defined in section 10(3) of the CFA 2014 as “a meeting held for the purpose of enabling information to be provided about: (a) mediation of disputes of the kinds to which relevant family applications relate, (b) ways in which disputes of those kinds may be resolved otherwise than by the court, and (c) the suitability of mediation, or of any other such way of resolving disputes, for trying to resolve any dispute to which the particular application relates”.

• Where an exemption from a MIAM is claimed, rule 3.10(1) provides that the court will, if appropriate when making a decision on allocation, and in any event at the first hearing, inquire into whether the exemption was validly claimed. Under rule 3.10(2) the court will, if it finds that the MIAM exemption was not validly claimed: “(a) direct the applicant, or direct the parties, to attend a MIAM; and (b) if necessary, adjourn the proceedings to enable a MIAM to take place; unless the court considers that in all the circumstances of the case, the MIAM requirement should not apply to the application in question”.

• FHDRAs are an opportunity for judicially led dispute resolution. In this case the mother had said on her C1A that she agreed to the father having unsupervised contact. 

• There needs to be active and careful consideration about whether or not a FFH is necessary and proportionate. As stated above, the Court of Appeal found that the Judge prematurely directed one at the FHDRA without the parties and particularly the mother having had time for legal advice on the key issues and what findings may be pursued. 

• There are some words of warning to the authors of Section 7 reports following FFHs: ‘There is, in our view, a real danger in reducing bespoke, detailed and subtle findings made by a judge to one or two word headline labels, in place of the original detail. The case analysis uses the labels of rape, bullying, manipulation and physical abuse, each of which emits a neon light in an erroneous and unjustified manner.’ The Cafcass Analysis as well as using short headline labels also went on to say: ‘Given the findings made, [B, C and A] have suffered harm and are at risk of suffering harm due to witnessing domestic abuse against their mother. [the father’s] behaviour as described by [the mother] would have been very frightening for the children …B has suffered physical harm although [the father] does not accept that this was abuse.’ The Judgment points out however that no findings were made in relation to the children suffering harm.

Conclusion

The Judgment ends with these important words:

‘All judges hearing children cases will know that there will almost inevitably be emotional fallout following the separation of adults who have been in a close relationship. Whilst the court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the court to hear about, much less to resolve, issues between the parents relating to their time together, unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child.’

Mediation Vouchers

It is important to draw your attention to the Family Mediation Voucher Scheme, which is a time-limited scheme designed to encourage parties to consider mediation as a means of resolving their disputes. Eligible parties can, by applying for a voucher during the MIAM process, receive up to £500 towards the costs of mediation by a mediator authorised by the Family Mediation Council.

How we can help

We have a large team of lawyers experienced in dealing with cases involving allegations of domestic abuse, including a Resolution Accredited specialist in domestic abuse and private law children cases.

We can help you navigate the complexities of these cases providing expert advice and much needed support. Please do not hesitate to contact us at A_FamilyReferrals@tvedwards.com, or visit our family page here.