Legal Update
12 January 2022

Special Measures in Finding of Fact Hearings: M (A Child) [2021] EWHC 3325 (Fam)

Written by Chloe Branton

Introduction

This was an appeal following a finding of fact hearing within private law proceedings concerning a 2-year-old child. The mother’s 14 allegations to be determined at first instance included 3 allegations of rape. There had been no preliminary applications for special measures or consideration of the issue by the judge at first instance leading to or during the finding of fact hearing. Not all of the mother’s allegations were found proven. Subsequently the mother appealed to the High Court with different legal representation.

The judgment on appeal considered issues including: the operation of PD12J of the Family Procedure Rules 2010, the treatment of vulnerable witnesses in the family court, and participation directions/ special measures for such witnesses in proceedings. Mrs Justice Judd also discussed the new statutory provisions, including the Domestic Abuse Act 2021, which had come into force since the initial hearing.

Background Facts

In around 2015 the parents met online when the mother was providing sexual services via webcam. The father was a client. The mother did not live in England, and they first met in person in 2016. The mother became pregnant in 2018, with the father being unhappy about this for a time. 4 weeks post-birth the father no longer wished to be in a relationship with the mother and they separated. The mother was very distressed, and there were arguments about the arrangements for the baby’s care and finances. In December 2019 the mother returned to her home country with the baby and without the father’s consent. This led to proceedings for their return, which the mother did in February 2020. The mother made allegations of domestic abuse against the father. A finding of fact hearing was required to determine allegations.

Within the orders listing the finding of fact hearing and timetabling there was nothing referring to Rule 3A and PD3AA. Despite the details set out within the orders as to time estimates, hybrid hearing arrangements and reading time, the orders were essentially silent as to support for the mother’s participation. There was no application for participation directions and no ground rules hearing. The mother had the assistance of an interpreter and both parents were represented. There was a substantial amount of evidence produced by the parties, including over 1000 pages of documents and numerous videos and recordings, including of sexual intercourse.

Finding of Fact and Judgment at First Instance

Evidence was heard from the mother, the father, maternal grandmother, paternal grandmother, and the father’s adult son over 4 days. Judgment was reserved and handed down a week later. The judge rejected the mother’s allegations of rape and sexual abuse. The judge found that the mother had made the allegations to malign the father to improve her own application for leave to remove from the jurisdiction. The judge also rejected the father’s allegation that the mother had sought to control his time with the child, instead stating she was an anxious first-time mother.

The Appeal

The mother was given permission to appeal on 2 out of the 5 grounds advanced:

“Ground 1 was the absence of special measures sought or implemented for the mother at the fact finding hearing and Ground 2 whether or not the judge balanced the evidence properly looking overall at the allegations.” [39]

The court was keen to highlight the limited role of the appellate court when considering an appeal against a finding of fact decision. The task is to determine if the judgment is sustainable. The court set out this well-established legal principle with reference to case law including Piglowska v Piglowska [1999] 1 WLR 1360. In summary, the appellate court should not interfere with findings made by trial judges unless compelled to do so. A list of reasons for this provided by Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114-115] was set out. Some of the key points are “the trial is not a dress rehearsal”, the lack of resources, and how the trial judge heard the live evidence directly.

When considering PD12J and the function of findings of fact, the court also considered the recent and important case of Re H-N and Others (Domestic Abuse: Finding of Fact hearings)[2021] EWCA Civ 448. A significant portion of the judgment was focused on the treatment of vulnerable witnesses in the family court.

“Since the hearing at first instance in this case, Parliament has passed the Domestic Abuse Act 2021, which includes s63 which provides that where a person 'is, or is at risk of being, a victim of domestic abuse', the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A.” [25].

Whilst the provision was not in force at the time of the finding of fact hearing, the court set out how there were extensive provisions (rule 3A and PD3AA) governing vulnerable witnesses in place. When determining the appeal, the court was clear that the provisions of rule 3A and PD2AA are mandatory. Also, that there could be no doubt the mother came within the category of those who might be vulnerable, given she was alleging domestic abuse and sexual abuse.

“It does not appear from any of the orders that the question of participation directions was considered or determined by the court. The provision that the mother and father should attend court on different days to give evidence appears from the wording to have been made in order to meet the restrictions on too many parties being in one room as a result of Covid.” [59]

As addressed at paragraph 62, whilst the mother was represented throughout the proceedings, the obligation to consider vulnerability is upon the court. Wilst advocates should have reminded the judge of this, any failure or decision not to do so does not relieve the court of the responsibility it has been given under the rules.

At paragraph 66 Mrs Justice Judd stated:

“this was a case which cried out for participation directions and a ground rules hearing, not just for the sake of the mother, but for the integrity of the court process itself. The purpose of the rules and Practice Direction is to avoid the quality of the evidence being diminished. Here, the need for directions went beyond the need to consider whether the parties should not come into physical contact in the court room or building. Matters, such as whether the mother should be visually shielded from the father as she gave her evidence, and what topics should be covered in cross examination, were highly relevant.”

The court considered points advanced on behalf of the father on how the lack of special measures cannot be said to have led to any particular difficulties with mother’s evidence. The court, however, accepted that it is not possible to know how the absence of such measures may have affected the mother. The various impacts for some witnesses were considered at paragraph 70. It is not always possible to deduce how a vulnerable witness is or will be affected when or from giving evidence What was important here was that the judge did not find the mother a credible witness and did intervene to ask the mother to answer the question asked of her.

Consequently, in relation to Ground 1, on the facts of this case Mrs Justice Judd found the failure to abide by the procedural rules to be “so serious that the decision of the court cannot stand” [71]. The case is a “stark reminder to us all that these matters need to be addressed to avoid the risk that the integrity of the trial will be undermined” [72]. Ground 1 was therefore found.

Dealing very briefly with Ground 2 (as the High Court did), Mrs Justice Judd also allowed this ground of appeal too. The judge in considering the extensive evidence filed, both paper and recordings, had acted diligently and conscientiously. The judge was sympathetic to the strain faced by judges but found the second ground too. The first instance judge’s reasoning as to the allegations of rape focused on the issues of consent and capacity rather than abusive behaviour in the wider sense, and she rejected the mother’s evidence on almost every point.

Concluding her judgment, Mrs Justice Judd emphasised that she was “not for one moment saying that there will be a different outcome at a retrial.” [86]. That will await determination as a fresh case before a Family Division Judge, with as much further delay avoided as possible. “Any new consideration of the facts or framing of the case will have to take place with a clear eye as to the evidence the court will need to come to a decision on the applications before it” [87].

Take Homes for Lawyers

This case reminds advocates of the importance of effective case management and preparation before the finding of fact hearing is heard. Pre-trial reviews and ground rules hearings are essential, and issues regarding vulnerable witnesses and special measures should be raised swiftly. Whilst the court has a mandatory duty to consider vulnerability, advocates should spend time considering and discussing special measures with those clients considered vulnerable ahead of directions hearings. This was a case where special measures should have certainly been applied for, and most likely would have been granted. Whilst the mother was able to appeal post-fact finding, the special measures should have been sought i) by their representative and/or ii) granted by the judge prior to the finding of fact. 

It is important to keep in mind when meeting with clients that they do not always understand what support is available or how such measures operate and could assist them. As far as is possible, time should be spent ahead of listing fact finding hearings to ensure participation directions are discussed with clients and between advocates to ensure the finding of fact is effective and fair. However, we must also remember that vulnerable witnesses may feel that the measures do not go far enough to protect and support them in court. This is an issue not touched upon by this judgment, but is a matter that should be kept in mind by all within the family system. It can be important to remind clients that some support is better than no support, no matter how meagre or limited they may think that support to be.

Finally, as was mentioned within this judgment, it can be easy in the covid-19 era to spend time considering how hearings are to be heard based purely upon protocols as to attendance at court of parties/witnesses and advocates. Advocates have become used to completing case plans regarding when and where parties will attend. However, the special measures needed to ensure a witness gives their best evidence must not be forgotten or relegated.

Author

Chloe Branton is a barrister specialising in both public and private children work.