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Care Orders vs Supervision Orders for Children Placed at Home

<!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For the first time in many years, the Court of Appeal in 2023 looked at the type of order, if any, under which a child should be placed at home in <em>JW (Child at Home under Care Order)</em> [2023] EWCA Civ 944<a href="#_ftn1" id="_ftnref1">[1]</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Case Law and Legal Principles</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Until the Court of Appeal revisited this area in <em>JW</em>, the last time that the topic had been, albeit tangentially, considered by the Court was in<em> Re DE (Child under Care Order: Injunction under Human Rights Act 1998)</em> [2014] EWFC 6; [2018] 1 FLR 1001.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Baker J held that, unless the need to remove arises as an emergency, a local authority considering removal should give notice to the parents, who may then make an application to the court to hold the situation via either an application to discharge the care order or a HRA 1998 injunction, or both. The decision to remove a child should only be made after a ‘<em>rigorous analysis of all of the realistic options</em>’ (in a similar manner required by the Supreme Court in <em>Re B </em>[2013] UKSC 33 when adoption is being considered). Baker J set out guidance on the approach to be taken where a local authority is proposing to remove a child, who is the subject of a care order, from home at paragraph 49 of the judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>[28] of <em>JW</em> sets out a helpful summary of the statutory scheme and case law:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"lower-alpha"} --> <ol style="list-style-type:lower-alpha"><!-- wp:list-item --> <li>making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, s 22C and in the placement regulations;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>since <em>Oxfordshire </em>and <em>Re O</em>, the High Court decision in <em>Re DE</em>, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself for making a care order;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>supervision orders should be made to work, where that is the proportionate form of order to make.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>President’s Public Law Working Group Guidance</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In March 2021<a href="#_ftn2" id="_ftnref2">[2]</a>, the report at paragraphs 158 – 162 dealt with the making of care orders where children are placed at home. Key parts of those paragraphs are:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There is a risk that the making of a care order at home provides false assurances to partner agencies because the local authority is neither involved in, nor has a thorough oversight of, the child’s day-to-day care.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The making of a care order should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings. Unless a final care order is necessary for the protection of a child, an alternative means/route should be made available to provide this support and these services without the need to make a care order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Supervision Orders may be appropriate, but there are concerns of their use. They have a higher (20%) risk of breakdown and return to court for further care proceedings within 5 years.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A final care order should not be used as a method prematurely to end proceedings within 26 weeks artificially to alleviate concerns that the children will be at continuing risk of harm. The order should only be made whether the local authority can demonstrate that the assessment of any carer of a looked after child meets the criteria of the regulations.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A final care order has an intrusive effect of state intervention, not only for the parents but also for the child. It can only be justified if it is necessary and proportionate to the risk of harm to the child.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Appendix F of the report sets out the best practice guidance (paragraphs 34 – 37) where a care order is sought but the child is to be placed at home:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There should be exceptional reasons for the court to make such an order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It should not be used as a vehicle for the provision or support or services.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The risks of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents/carers, or some lesser legal order and regime is required. Any placement with parents under an interim or final order should be evidenced to comply with the statutory regulations for placement at home.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The PLWG in their report and recommendations placed emphasis on the need for proportionality when considering the necessity for a child placed at home under a final care order. This in turn caused the Court of Appeal in <em>JW</em> to find that there needs to be ‘<em>exceptional reasons’</em> to justify the making of a care order for a child who is to be placed at home as a long-term care plan.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Paragraph 37 of <em>JW</em> is key;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.'</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In April 2023 a further report was published (<em>Recommendations to achieve best practice in the child protection and family justice systems: Supervision Orders</em>)<a href="#_ftn3" id="_ftnref3">[3]</a>. The key provision within this report is contained with Appendix C. The key change is the expectation that, in every case where a supervision order may be made, the local authority will prepare a clear and detailed Supervision Support Plan<a href="#_ftn4" id="_ftnref4">[4]</a> which is tailored to the needs of the child. It also requires that the plan should be clear as to the provision of resources to underpin each element of the plan, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the supervision order:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>In every case where a Supervision Order may be made, the local authority will prepare a clear and detailed Supervision Support Plan which is tailored to the needs of the child. The guidance also requires that the plan should be clear as to the provision of resources to underpin <u>each element of the plan</u>, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the Supervision Order.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following the decision in JW, it is anticipated that the number of final care orders for children placed at home will drop significantly. As practitioners, it is important to analyse the facts of each case where such a care plan is proposed, to identify whether there are ‘truly exceptional’ circumstances that justify the same. Where a case is to be concluded by way of a supervision order, it is essential that the support plan is a comprehensive document that sets out exactly what the parents can expect the local authority to do to support the family in making the placement successful, and vice versa.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf">https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf">https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf">https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf">https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf</a></p> <!-- /wp:paragraph -->

A &amp; Anor v B &amp; Ors: The approach of the family court to sexual history and allegations of rape and sexual abuse

<!-- wp:paragraph --> <p><strong><em>In this important recent authority, Mrs Justice Knowles considered two appeals in relation to allegations of rape and sexual abuse, made within private law proceedings. Mrs Justice Knowles was asked to consider in particular whether the family court should apply a consistent definition of rape, sexual assault or consent, the applicability of criminal law definitions, the approach to arguments pertaining to a complainant’s sexual history and whether judges in the family court should give themselves warnings about ‘rape myths’. Knowles J allowed one of the appeals but not the other. &nbsp;This article considers the decision and the approach to sexual allegations within family proceedings.</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background of the Appeals</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Appeal in ABC</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first appeal considered was the case of ABC.&nbsp; The mother (A) had made several allegations against the respondent father (B), heard at a fact-finding hearing by Recorder Temple within private law children proceedings. The child was also a party (C). In brief, the parents started a relationship in 2013 and that year had an Islamic marriage. In 2014 they separated and C was born in October the same year. A alleged that B was coercive and controlling throughout their relationship and had sexual intercourse with her, without her consent, twice. In relation to the first occasion, A said she specifically consented to protected intercourse with B, but at some point B removed his condom without her consent. Following this, A became pregnant and she terminated that pregnancy. Thereafter, the mother alleged that the father coerced her into having sex, manipulated her emotionally (including her agreeing to conceive) and caused her related physical trauma. The second allegation of rape was said to have taken place in the presence of A’s daughter (aged 2 at the time).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A non-molestation order was made after the parties separated, which the father breached on several occasions, reported to the police. In September 2014 the mother first reported rape by the father and an initial account was later taken. Having thereafter decided not to proceed with the complaint, in April 2015 the mother said she wished to pursue her complaint and gave a video recorded interview. B was arrested and maintained that the encounter was consensual. In 2016 a decision was made by the Crown Prosecution Service not to charge the father. Thereafter, the parents did not contact each other, however, after the mother’s request to the father to assist in caring for the child in January 2017, they resumed a sexual relationship until April 2017. A said that she was manipulated into resuming the relationship. In January 2020, the father made an application which started the proceedings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At the conclusion of the hearing, the judge at first instance did not make any of the findings sought by the applicant mother. A’s allegations included rape, sexual assault, sexual coercion, physical and emotional abuse, and coercive and controlling behaviour.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Appeal in DE</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was an appeal against the judgment of HHJ Marin made in July 2022 at the conclusion of a fact-finding hearing. The parents had been in a relationship since 2004, married in 2009 and separated in 2018. Both parties offered competing reasons for why the relationship broke down, with the mother saying it was due to the serious emotional and physical abuse from the father. At first the father did have contact with the child, but said this deteriorated (and came to a halt in 2021) when he entered a new relationship with a woman he subsequently married. The father applied for a shared care arrangement, which the mother opposed and made allegations of rape, non-fatal strangulation, domestic abuse, controlling behaviour and child abuse against the father.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst some adverse findings were made in relation to the Father’s behaviour, no findings were made of rape, strangulation or physical and psychological abuse of the parties’ child.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law/Propositions</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Each appellant was granted permission to appeal on grounds with common themes.&nbsp; Rather helpfully and in order to provide some focus, Knowles J set out five propositions on which counsel were to provide submissions. These are set out with below, each with the Judge’s consideration of the proposition and the law. However, first Knowles J reiterated the role of the appellate court and the circumstances in which appeals are to be considered.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>The Role of the Appellate Court</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J found the Appellant mother’s request for the court to give guidance on how allegations of sexual assault, rape and consent should be considered in the family court to be problematic. As per the Family Procedure Rule 2010 (‘FPR’) the role of the appellate court is to determine whether the decision at first instance was <em>“wrong” </em>or <em>“unjust because of a serious procedural or other irregularity in the lower court”<a href="#_ftn1" id="_ftnref1"><strong>[1]</strong></a></em>. Knowles J also drew attention to the observations in <em>Re H-N<a href="#_ftn2" id="_ftnref2"><strong>[2]</strong></a>; “But it is also because there is plainly and properly a limit to what a constitution of the Court of Appeal, determining four individual appeals, can, and as a matter of law should, say about issues which do not strictly arise in any of those appeals.”<a href="#_ftn3" id="_ftnref3"><strong>[3]</strong></a></em> Further legal principles were set out by Knowles J from leading authorities and concluded at [12] that <em>“my role as an appellate judge does not preclude me, where I consider it necessary to do so, from providing some guidance or observations which aim to clarify the law as it currently stands…I am quite clear, however, that it is not my role to construct a substantive framework for determining allegations of rape and sexual assault in the family court.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>Legal Context</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The propositions which Knowles J set out are against the backdrop that the family court should not undertake an analysis of factual evidence based upon <em>criminal</em> law. This was clearly set out by McFarlane LJ (as he was) in <em>Re R<a href="#_ftn4" id="_ftnref4"><strong>[4]</strong></a></em>:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“(1) The focus and purpose of a fact-finding hearing in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(2) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes opened to such risks as factual determination may have established.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(3) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(4) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings based upon criminal law principles and concepts.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This guidance was also reconfirmed in<em> Re H-N</em>, though in <em>JH v MF<a href="#_ftn5" id="_ftnref5"><strong>[5]</strong></a></em> Russell J adopted the principles but suggested that the family court should not take an approach which is at odds from that applicable in criminal law<a href="#_ftn6" id="_ftnref6">[6]</a>.&nbsp; In considering these cases for appeal, Knowles J adopted the principles set out in <em>Re R </em>and confirmed in <em>Re H-N.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>The Propositions and Law</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J considered propositions 1 and 3 together.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Proposition 1: Whether the family court should apply a consistent definition of: (a) rape; (b) sexual assault; (c) consent, making clear the difference between consent and submission.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Proposition 3: Whether the definitions of rape, sexual assault, and consent used in the criminal justice system should be either a starting or finishing point for judges in the family court.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On behalf of the mother in ABC, it was submitted there was a need for consistent definitions based upon a variety of fact-finding judgments (which were argued to show contradictory approaches to rape) and the absence of such a framework in the FPR. A legal framework was suggested on behalf of the mother which is set out at [19]. In opposition, it was submitted that there was no evidence of inconsistency amongst reported decisions and importing principles from criminal law was contrary to the purpose of a fact-finding hearing process in family proceedings. Further, on behalf of the child in ABC, it was submitted that the court had the freedom to determine what was abusive within PD12J definitions, focussing on what was necessary for welfare determination.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J’s view was that as a starting point, the family courts must not import the definitions of criminal law. Though Parliament had recently passed the Domestic Abuse Act 2021 which in some parts mirrored procedures in criminal law to family law, such as litigants in person not undertaking direct cross examination, there was no framework provided to determine definitions of rape and sexual assault. It was Knowles J’s firm view that a focus on seeking to characterise or establish behaviour as meeting a particular definition runs the risk of the court becoming<em> “unnecessarily bogged down in legal technicality”<a href="#_ftn7" id="_ftnref7"><strong>[7]</strong></a>. </em>Moreover, as McFarlane LJ considered in <em>Re R</em>, the judge must consider a wide canvas and scrutinise family relationships in order to make a factual determination, relevant to risk and welfare. The appellant’s suggested framework for determining allegations of this type included the word ‘<em>willing’</em>, which the Judge considered too narrow and as prescriptive as applying criminal law concepts. Knowles J was of the view that this was “<em>too narrow a prism through which to view and investigate the true nature of an adult relationship</em>.”&nbsp; Knowles J also considered the danger of adopting too narrow a focus on sexual relationships between adults, as set out in <em>K v K<a href="#_ftn8" id="_ftnref8"><strong>[8]</strong></a>. </em>In this recent appeal, the judge was criticised for not standing back at looking at the evidence as a whole.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J also rejected the argument that PD12J fails to contain a framework to determine sexual abuse. At [29] she states that <em>“PD12J sets out a specific <strong>procedural </strong>framework for managing and determining allegations of domestic abuse within private law children proceedings…the inclusion of any type of framework advocated for by Mr Metzer KC would inappropriately narrow the court’s focus and run the risk of becoming a tick box exercise rather than a holistic evaluation of the evidence in a particular case.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Accordingly, the argument that the family court should apply consistent definitions of rape, sexual assault and consent was <strong>rejected</strong>.&nbsp; Knowles J also held that <a>the definitions of rape, sexual assault, and consent used in the criminal justice system should have no place in the family court.</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Proposition 2: Whether the failure to have a consistent approach to these issues is in breach of the Article 6, 8 and 14 rights of the Appellant mothers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was submitted on behalf of the appellant that the lack of any consistent approach impacted on the fairness of the proceedings and subsequently breached Articles 6 and 8. Further, Article 14 was impacted due to the discrimination following breaches of Article 6 and/or 8 on gendered grounds, as women were more likely to be victims of rape. In contrast, leading counsel for the father opposed that there was a breach of any article rights and also criticised the mother’s team for not providing any domestic or international authority that the necessary articles required definitions of the terms in proceedings concerning a child’s welfare. Knowles J was not satisfied that there was any breach of Article 6 (based on inconsistent decision making).&nbsp; At most there were different decisions made by different judges on different facts and evidence, a feature of the fact finding process itself.&nbsp; The Appellants referred the judge to the Istanbul Convention<a href="#_ftn9" id="_ftnref9">[9]</a>. However, the judge considered that the <em>‘Istanbul Convention imposes no obligation <a>on the family court beyond that articulated in Article 31, namely that violence covered by the Convention is taken into account when determining issues concerning children.</a></em>’<a href="#_ftn10" id="_ftnref10">[10]</a>. It could not sensibly be argued that the family court fails to do so.&nbsp; Thus, Knowles J determined that Proposition 2 had not been made out by the Appellants.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Proposition 4: What the approach of the family court should be to a complainant’s sexual history when determining allegations of rape and sexual assault</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When considering this proposition, all the parties agreed that as PD12J does not provide guidance on this issue, it would assist for the court to provide some. All parties appeared in agreement that a complainant’s sexual history with a non-party would rarely be relevant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J stated [46]:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a><em>“My starting point is that the established approach to evidence in the family court can accommodate circumstances in which a parent, either making or facing allegations of sexual abuse, seeks to adduce evidence of the other person's sexual history, or their own sexual history or their shared sexual history. To summarise, this involves the following process:</em></a><em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) An assessment of the relevance of the evidence for which permission is sought to be adduced, having regard to the need for the court to consider the&nbsp;"wide canvas"&nbsp;of evidence;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) Thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(c) At all times, consideration of the breadth of the court's powers to control the manner in which evidence is to be placed before it.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When the court considers evidence, it has a discretion to control the evidence as per FPR rule 22.1(1) and it must also consider the overriding objective to deal with cases justly, having regard to any welfare issues (FPR r1.1). &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J gave the following legal framework to assist family judges in case management of evidence relating to ‘sexual history’ at [58]:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>If a party wishes to adduce evidence about a complainant's sexual history with a <em>third party</em>, a written application should be made in advance for permission to do so, supported by a witness statement.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It is for the party making such an application to persuade the court of the relevance and necessity of such material to the specific factual issues which the court is required to determine.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Any such application will require the court's adjudication preferably at a case management hearing.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The court should apply the approach set out at [45]-[49].</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>If a party wishes to rely on evidence about sexual history between <em>partners</em>, they do not need to make a specific application to do so unless reliance is also placed on intimate images. In those circumstances, the party must issue an application in accordance with the guidance at [77]-[78] in&nbsp;Re M (Intimate Images)<a href="#_ftn11" id="_ftnref11"><u>[11]</u></a>.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>If a party objects to evidence of sexual history between parents/parties being filed, they should make an application to the court in advance, supported by a witness statement explaining why this material is either irrelevant or should not be admitted.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Any such application will require the court's adjudication preferably at a case management hearing.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The court should apply the approach set out at [45]-[49] of the judgment.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Proposition 5: Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On behalf of the appellants, it was argued that family judges did need to have a full understanding about the myths: in the Crown Courts, judges were advised to give directions about stereotypes common in sexual assault. The appellants drew the Judge’s attention to the Crown Prosecution Service Guidance<a href="#_ftn12" id="_ftnref12">[12]</a> which set out various myths, and it was submitted that this would be a helpful starting point for judges. In opposition, it was argued that family judges are required to have Judicial College training, thus if there were to be further training to assist judges it should be brought to the head of the Judicial College. In the Judge’s view, judicial training is a matter that is reserved to the Judicial College and it is in the best position to assess what training is required for judges. The Judge did, however, set out resources that provide her with assistance at [63] including literature about rape myths. Knowles J did not consider it appropriate that she should produce a list of common rape myths or stereotypes as it would not be comprehensive and would run the risk of creating a rigid framework. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Appeal in ABC</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On behalf of the appellant, it was argued that the judge at first instance infected her analysis and findings by using the criminal definition of rape within the Sexual Offences Act 2003, which all parties agree was contrary to the guidance from <em>Re H-N</em>. Counsel for the father submitted that though the definition applied was incorrect, the judge did not become bogged down in legal technicality, nor was the judge distracted from the task of reaching narrative conclusions of the parents’ behaviour. Knowles J concluded that the judge’s reference to the Sexual Offences Act was ‘<em>very troubling’</em><a href="#_ftn13" id="_ftnref13">[13]</a> and held that it should not have formed part of the judgment. However, Knowles J was not satisfied that the judge at first instance made decisions that were not in accordance with the principles of fact-finding in the family court which was set out in her judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In consideration of ground 2, it was submitted on behalf of the appellant that the judge failed to apply leading case law concerning rape, domestic abuse, coercive and controlling behaviour and PD12J. Further, the judgment was fatally flawed as there was no overall analysis of the parent’s relationship to determine features of coercive or controlling behaviour. Knowles J reiterated that she was concerned with substance over form and noted (which no party disagreed) that ‘<em>t<a>he evidence in this case amply demonstrated the judge's awareness and application of Practice Direction 12J in her case management of these proceedings</a>’</em>.<a href="#_ftn14" id="_ftnref14">[14]</a> Knowles J analysed the provisions set out in PD12J and in conclusion could not accept the appellant’s submission that the judge’s failure to cite PD12J in the context of a fact-finding exercise was so fatal to impact her judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The third ground that was considered in this appeal was that the judge was wrong to place weight on past sexual conduct of the mother. It was submitted that the judge had gone too far when considering the sexually consensual behaviour and, in essence, the judge had victim-blamed the mother. However, on behalf of the father it was submitted that that the judge had correctly evaluated the parents’ sexual behaviour against the whole background. Knowles J considered that where there are allegations of sexual coercion, there would need to be judicial evaluation of the sexual relationship and in this case the judge at first instance had placed the appropriate weight on the evidence provided to reach her conclusion. The judge was not satisfied that this ground was made out, in fact she was unpersuaded by any of the grounds of appeal and dismissed the appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Appeal in DE</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Though there were multiple grounds upon which permission to appeal was allowed, Knowles J primarily focused on the grounds in relation to how the judge at first instance approached the allegations of rape and non-fatal strangulation. During submissions, both counsel agreed that the judge failed to specifically identify whether the findings he made were within the definition of abusive behaviour in PD12J. Knowles J was not persuaded to consider the finding that the mother was not raped by the father, as the judge at first instance had the benefit of hearing both accounts first hand. The judge was, however, persuaded by the argument that the trial judge failed to stand back and consider the significance of the findings he had made about the parties’ sexual relationship and set these against findings made about the father’s behaviour. In allowing the appeal on this ground, Knowles J considered two main reasons. The first was that ‘<a><em>that the judge failed to consider whether his findings amounted to behaviour which, though falling short of establishing rape or non-fatal strangulation, was nevertheless profoundly abusive and which should not be ignored (see&nbsp;<u>Re H-N</u>&nbsp;at [71])</em></a>’<a href="#_ftn15" id="_ftnref15">[15]</a> and the second was that in the judgment, the judge did find other examples of abusive conduct that would be within the meaning of PD12J. Overall, it was held that the judge erred by failing to stand back and look at the big picture.&nbsp; Knowles J stated “<em>I venture to suggest that, had the judge adopted the discipline of evaluating his factual conclusions against the definitions in PD12J, so as to produce a schedule of his findings, he may not have fallen into error</em>.”&nbsp; &nbsp;Failing to look at any pattern of abusive behaviour would have profound implications for both the welfare analysis conducted by Cafcass and the court’s ultimate welfare determination. Accordingly, Knowles J held that this case should be remitted to the relevant Designated Family Judge to determine whether a further fact-finding hearing is required and, if so, its parameters.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This detailed and helpful judgment provides reminders to practitioners of the key authorities when considering allegations of rape and sexual abuse, within the scope of PD12J. The judgment in the form of propositions gives the reader insight into the judge’s decision, having considered the detailed law. The provision of guidance regarding a complaint’s sexual history is thoughtful and will provide practitioners and judges with assistance in the future, as PD12J cases remain ever prominent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At [126], Knowles J made observations in relation to comments made by the judge in the DE appeal about the way victims of rape should behave. Knowles J offered a crucial reminder of universal vulnerability: <em>‘<a>The intelligence or otherwise of a victim of sexual assault or of any assault in the context of an intimate relationship is nearly always irrelevant to the reporting of an assault to the authorities. Victims of whatever age, race, sexuality, appearance, intelligence, and background often have the greatest difficulty in reporting when an assault has occurred because of shame, fear of being disbelieved or fear that the process of reporting an assault will itself be traumatic.</a>’</em><a href="#_ftn16" id="_ftnref16">[16]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A final observation from Knowles J was made, of key importance to management of cases concerning allegations of physical, sexual, emotional and domestic abuse.&nbsp; &nbsp;Neither judge at first instance had themselves produced <strong>schedules of findings</strong> (in ABC one was produced by counsel later). As set out in paragraph 29 of PD12J, a schedule of findings is required to be attached to the order following the fact-finding hearing. Knowles J commented that it would be desirable for a judge to complete their own schedule of findings, with the definitions set out in the practice direction in mind. Rather than intending to &nbsp;add to the pressures of busy family law judges, such a schedule represents good practice “<a><em>which may help to illuminate a judge's evaluation of the evidence and to inform their ultimate findings</em></a>.”</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> FPR rule 30.12(3)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> Re H-N at [2]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198, [82]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5" id="_ftn5">[5]</a> JH v MF (Child Arrangements) [2020] 2 FLR 344</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6" id="_ftn6">[6]</a> JH v MF [46]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref7" id="_ftn7">[7]</a> Cobb J in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) at [29]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref8" id="_ftn8">[8]</a> K v K [2022] EWCA Civ 468</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref9" id="_ftn9">[9]</a> Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (came into force on 1 November 2022)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref10" id="_ftn10">[10]</a> [42]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref11" id="_ftn11">[11]</a> <em>Re M (A Child)(Private Law Children Proceedings: Case Management: Intimate Images)</em> [2022] EWHC 986 (Fam)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref12" id="_ftn12">[12]</a> <a>Equal Treatment Bench Book (July 2022), to the Crown Court Compendium and to the Crown Prosecution Service Guidance found at&nbsp;<em>"Rape and Sexual Offences - Annex A: Tackling Rape Myths and Stereotypes"</em></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref13" id="_ftn13">[13]</a> [83]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref14" id="_ftn14">[14]</a> [89]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref15" id="_ftn15">[15]</a> [124]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref16" id="_ftn16">[16]</a> [127]</p> <!-- /wp:paragraph -->

Three main take aways from F v M [2023] EWFC 5

<!-- wp:paragraph --> <p>In <em><u>F v M</u></em> [2023] EWFC 5 Mr Justice Hayden gave judgment in what is hopefully the final part of the protracted litigation between a father (F) and a mother (M) of 2 young children. This particular judgment followed the decision by Hayden J in <em><u>F v M</u></em> [2021] EWFC 4 back on 5 January 2021 regarding very serious allegations of coercive and controlling behaviour by F. As Hayden J notes in this most recent judgment, his approach in determining such allegations within finding of fact hearings was endorsed by the Court of Appeal in <em><u>H-N and other (Children) (Domestic Abuse: Finding of Fact Hearings) (Rev 2)</u></em> [2021] EWCA Civ 448. This particular judgment, however, focuses on the aftermath of findings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hayden J sets out some of the ways these proceedings have been delayed, usually by the actions of F. This judgment however, was mainly focused in regards to whether and what orders should be made for contact between F and the 2 children. Given the focus more recently on the finding of fact hearings themselves, this judgment assists with the inevitable question that results once findings are or are not made: what happens next?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hayden J’s judgment is useful for practitioners in covering 3 main areas of interest which can often arise when advising clients of the ‘welfare stage’ post finding of fact hearing:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><!-- wp:list-item --> <li><strong>No Contact Orders- and how even annual indirect contact can be inappropriate</strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>Parental Responsibility- and the disparity between married and unmarried fathers when it comes to removal of PR.</strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>‘Lawfare’ and Section 91(14) Children Act 1989- how section 91(14) can be an appropriate protective filter for children and parents in the face of continued controlling and coercive behaviour.</strong></li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>This case law update will briefly discuss each of these three highlighted issues that arise within Hayden J’s judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>No Contact Orders- and how even annual indirect contact can be inappropriate</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Cafcass officer had filed a report recommending indirect contact by way of a letter from F once per year to the children. M was to store the letters in a safe place ‘until such a time that they are able to read his letters’ [14]. She had concluded it would not be possible to safeguard the children from F’s emotionally and psychologically abusive behaviours until he had undertaken behaviour change work. The advocates contacted the judge to inform him they were preparing a consent order to adjourn the hearing, with the Cafcass officers’ recommended contact to form part of the order. The judge refused the application, stating he thought it was “at very best, misconceived.” [15]. He also noted the lack of application for an order pursuant to section 91(14) Children Act 1989, which will be considered later, along with how F used the court process to continue to control and abuse.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court considered a statement from the maternal grandmother (‘MGM’) about the indirect contact that had taken place between the children and F. Her account was deemed insightful and powerful, and recorded in the judgment as a result at paragraphs 25 and 26. The judge considered that MGM had “rightly identified that F was projecting an image to his children that cast him in a glamorous way” [28]. The judge had no confidence that F can use indirect contact as a way for the children to know something of their cultural origins, as the Cafcass officer had hoped. Instead, the court considered him to be a ‘fantasist’. The judge examined some of the indirect contact he had sent, both in terms of contents and the type of cards themselves, and was concerned that they were unsettling and confusing for the children. F had not ever seen the youngest child, yet he was writing that he loved and missed them. The judge was clear F had not shown insight into his behaviours throughout the proceedings, nor “exhibit even a scintilla of empathy” and was instead arrogant [29].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Evidence was heard from the Cafcass officer. She was clear that if the parents had not been married, she would have recommended the revocation of F’s parental responsibility. In the words of Hayden J therefore: “This begs an inevitable question. If that were so, why would she recommend indirect contact. It struck me that the Cafcass officer had reverted to general principles, without weaving them into the particular circumstances of this deeply troubling case.” [27]. He considered that the general principle of leaving open the option for some contact between child and parent, often for some genetic inheritance and cultural understanding, is a sound and important principle. However, this must not be seen as automatic. Instead “The need for it and the potential damage that might be caused by it, need properly to be evaluated” and the reach and importance of indirect contact should not be underestimated [27].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Overall, the judge determined that, when analysed, he could not identify any benefit of indirect contact for the children. Instead, it was easy to see how indirect contact (even annually) could be harmful to them and M. Whilst M had been prepared to agree to this level of contact, she was doing so to try and avoid conflict and was troubled by it. She was also giving deference to the Cafcass officer as a professional who had given a recommendation to the court. This also demonstrated how M had not yet “fully achieved the capacity to assert her own autonomy” given F’s controlling behaviour during and since their relationship [31]. At the conclusion of the hearing F decided not to oppose an order for ‘no indirect contact’ after all. A judgment was still required, however.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hayden J therefore provided the following view in the final paragraph of his judgment: “… there are occasions where it is necessary to recognise a disagreeable truth. There is, sometimes, though very rarely, a parent who has nothing to offer a child and whom the child is better off without. This is such a case.” The judge considered how, even in adoption cases, limited indirect contact is invariably ordered to highlight how uncommon a true no contact order is. The judge wished to be clear, however, that the family’s negative assessment of F was correct. He stated that his “comments in respect of this father are not ones that any Judge makes lightly. Judges do well to avoid emotive terms, but equally, where a clear finding requires to be made, it cannot be concealed in abstruse or cryptic language…” [32]. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This case serves as a useful reminder that indirect contact can be important and reaching, and thus a useful and powerful connection for the children with a parent in appropriate cases. However, it also reminds advocates that indirect contact should not be seen as an automatic principle. It must be properly analysed in light of the risks and any findings in a case. Parents and advocates should also not be afraid to challenge the assessment of a professional where it seems they may be relying on general principles without proper application to the specifics of the proceedings. Whilst true “no contact” orders are likely to still be rare, the analysis here is useful when considering what advice to provide in response to a contact recommendation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Parental Responsibility- and the disparity between married and unmarried father’s when it comes to removal of PR.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As previously stated, the parents in this case were married. F was accordingly granted PR automatically for both of his children in accordance with s2(1) Children Act 1989. S4 of the Act deals with the removal of PR. As lawyers in this area well know, s4(1) only applies if the parents were not married at the time of the child’s birth. In this case as F was married to M at the time of the children’s births, s4(2) which provides that a person who has acquired PR under s4(1) ceases to have PR only if the court orders, is not applicable.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hayden J provides a helpful summary of the key issues around whether it is compatible with the European Convention on Human Rights &nbsp;(‘ECHR’) to have such a distinction between married and unmarried fathers through reference to both <em><u>Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) </u></em>[2016] 2 FLR 977 and <em>MZ v FZ and Others</em> [2022] All ER (D) 130.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hayden J appears to agree with Russell J in <em>MZ v FZ </em>in recognising the way society and families have changed considerably since the Children Act 1989 was introduced in October 1991, especially in regard to cohabitation. Hayden J here stated that he finds the “anomaly of legal status [between married and unmarried] to be profoundly uncomfortable” but that the “contemplated protection for the applicant parent and children is to be found in the regime of Prohibited Steps Orders and Specific Issue Orders” given there can be no withdrawing of PR. Essentially the “legal status of a married father remains intact [but] it can be stripped of any potency to reach into the lives of the mother and children” thus adversely impacting his ability to affect the welfare of either.” [7].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As the government is urged to consider litigation to better protect the rights of cohabitants in various ways, it may well be that thought is given to this distinction around PR. However, successive governments have continued to allow greater rights and status for those who are married on the basis that marriage has a positive impact on society. Overall, it would seem unlikely for a statutory change to be made any time soon. Advocates should therefore be sure to check the basis upon which a father has PR and be able to advise their client accordingly.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>‘Lawfare’ and Section 91(14) Children Act 1989- how Section 91(14) can be an appropriate protective filter for children and parents in the face of continued controlling and coercive behaviour.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Within this helpful judgment, Hayden J references an earlier decision of &nbsp;Lady Justice King in in <em><u>Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders)</u></em> [2021] EWCA Civ 1749 in the identification of ‘lawfare’. This is a concept which Hayden J considers “encapsulates an experience that will be familiar to every family lawyer” [19].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>King LJ considered ‘lawfare’ in that case noting: “[41] ….the type of behaviour indulged in by one of the parents amounts to ‘lawfare’, that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for a parent from what is in effect, a form of coercive control on their former partner’s part.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hayden J went on to say that, given the enhanced understanding we now have of controlling and coercive behaviour, we can now recognise that “When all other avenues are lost, too often the Court process becomes the only weapon available.” [20].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Advocates will be familiar with their clients expressing frustration at the protracted nature of litigation, with some applications being deemed an insidious way to continue to exercise control and torment their former partner. Hayden J reminds lawyers and judges to be “assiduous to identify” when lawfare occurs, to ensure the court is a “guarantee of protection” rather than “manipulated into becoming a source of harm” [20].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is these such cases that are likely to be assisted by consideration of an application for an order pursuant to section 91(14). Previously, and still at times, seen as a draconian order, the new Domestic Abuse Act 2021 (‘’DDA 2021’) provides a handy reminder as to their existence and power.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 91A was inserted into the Children Act by the DDA 2021, with a “considerably wider scope for the greater use of section 91(14)” in the modern age of wider social media access and presence. Hayden J echoed the view that section 91(14) was always intended to “provide a protective filter from inappropriate applications” to protect children and the live with parent. He also reminded lawyers that it “is not a punitive measure towards a recalcitrant parent. Neither is it a bar on access to justice” given it does not prevent applications entirely. Instead, it is designed to be used in appropriate cases to protect the child and primary carer from “the stress and uncertainty of a misconceived or vexatious application.” [18]. In short, it is these cases of ‘lawfare’ that cry out for a section 91(14) application.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hayden J considered that the section 91A provisions “are transformative. The section provides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm.” [20]. The provision recognised the toll protracted litigation has, especially on those who are likely already vulnerable.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When hearing this particular matter Hayden J was clear that he found that “F found the opportunity to extend his controlling behaviour into the Court arena.” [17]. The judge also considered that the agreed protective provisions of the parties did not recognise the opportunities litigation had created for F to exert control over the children and M’s lives. [17] Consequently, the judge agreed with the making of a section 91(14) Order, albeit noting F had agreed to one in any event.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst not a case setting precedent, another recent case with a section 91(14) Order made is that of <em>TF v DL v E&amp;P</em> [2022] EWFC 1389. Here DJ Webb granted the Order for 5 years at the recommendation of the Children’s Guardian, against a backdrop of 15 recent applications. As professionals consider the insertion of section 91A further, we are likely to see further cases where section 91(14) Orders are made (or not). These cases should help us see how the DDA 2021 challenges the landscape of children cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Overall, it is promising to see a judgment highlighting the significant impact of controlling and coercive behaviour in relationships, and how such behaviour can continue to exist through insidious applications and/or protracted litigation. Professionals, whether that be lawyers, judges or Cafcass officers, must remember to analyse cases individually rather than falling back on general principles without proper application. Section 91(14) orders can be helpful protective tools, and are being recognised as such more often, rather than seen as a draconian and punitive measure. The insertion of section 91A through the DDA 2021 has been a useful reminder of this and we will hopefully see further case law reinforcing this soon. Finally, orders for no indirect contact at all, can and will be appropriate orders in some cases. Thought must be given to the actual impact and purpose of any indirect contact, both positive and negative, without simply concluding that its existence for the ability to meet cultural identity needs outweighs any upset, confusion, or emotional harm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Further Reading:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>To read more about Re H-N and the recent case law around domestic abuse allegations and the Domestic Abuse Act 2021 in general, see </em><em>Naakesha Michl’s article from 8 February 2022: </em><a href="https://www.parklaneplowden.co.uk/private-law-children-cases-involving-allegations-of-domestic-abuse-recent-case-law-and-the-domestic-abuse-act-2021/"><em>https://www.parklaneplowden.co.uk/private-law-children-cases-involving-allegations-of-domestic-abuse-recent-case-law-and-the-domestic-abuse-act-2021/</em></a><em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>See also Chloe Branton’s case law update regarding special measures in fact finding hearings 12 January 2022:</em> <a href="https://www.parklaneplowden.co.uk/special-measures-in-finding-of-fact-hearings-m-a-child-2021-ewhc-3325-fam/"><em>https://www.parklaneplowden.co.uk/special-measures-in-finding-of-fact-hearings-m-a-child-2021-ewhc-3325-fam/</em></a><em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Chloe also published a piece on special measures in the June 2022 edition of the Family Law Journal: </em><a href="https://www.familylaw.co.uk/news_and_comment/special-measures-re-m-(a-child)-practical-tips"><em>https://www.familylaw.co.uk/news_and_comment/special-measures-re-m-(a-child)-practical-tips</em></a><em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>See also Lucy Sowden and Chloe Branton’s webinar on the Domestic Abuse Act 2021 and recent case law surrounding the treatment of domestic abuse within private law proceedings from July 2022: </em><a href="https://www.parklaneplowden.co.uk/replay-domestic-abuse-in-private-law-proceedings-seminar-19-july-2022/"><em>https://www.parklaneplowden.co.uk/replay-domestic-abuse-in-private-law-proceedings-seminar-19-july-2022/</em></a><em></em></p> <!-- /wp:paragraph -->

Family: Childcare Conference 24 June 2022 🗺

<!-- wp:paragraph {"align":"left"} --> <p class="has-text-align-left">Parklane Plowden invite you to our Family: Childcare Conference at the Queens Hotel, Leeds. Join us for a conference with specialist keynote speakers focusing on how best to engage families in the family justice system followed by a Q&amp;A panel with PLP barristers and local experts. Please email questions for the panels.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Keynote Speakers and Topics</strong></p> <!-- /wp:paragraph --> <!-- wp:group --> <div class="wp-block-group"><!-- wp:list --> <ul><li><a href="https://www.familylaw.co.uk/authors/dr-kate-hellin" target="_blank" rel="noreferrer noopener"><strong>Dr Kate Hellin</strong></a>:&nbsp;Trauma and conflict in families and professionals in the family court: Finding understanding and breaking down barriers.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Panel</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><a href="https://lex.parklaneplowden.co.uk/temp/iHtmlEditorPreviews/2022669491347703.html?noCache=4770394#">Alex Taylor</a>, Barrister, Parklane Plowden Chambers.</li><li>James Cook, Solicitor, Ridley &amp; Hall.</li><li>Karen Kirby, Team Manager, Futures Service.</li><li>Emma Ross, Programme Manager, Futures Service.</li></ul> <!-- /wp:list --> <!-- wp:paragraph {"align":"left"} --> <p class="has-text-align-left">--0--</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><a href="https://www.leedsbeckett.ac.uk/staff/lee-sobo-allen/" target="_blank" rel="noreferrer noopener"><strong>Lee Sobo-Allen</strong></a>:&nbsp;A social work perspective on how to engage fathers in the family justice system.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Panel</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><a href="https://lex.parklaneplowden.co.uk/temp/iHtmlEditorPreviews/2022669491347703.html?noCache=4770394#">Katherine Goss</a>, Barrister, Parklane Plowden Chambers.</li><li>Jane Bolton, Solicitor, Jones Myers.</li><li>Steven Anderson, Cafcass.</li></ul> <!-- /wp:list --></div> <!-- /wp:group --> <!-- wp:paragraph --> <p><strong>Programme</strong>: </p> <!-- /wp:paragraph --> <!-- wp:table --> <figure class="wp-block-table"><table><tbody><tr><td>12:30 - 13:30 - &nbsp;Registration &amp; Lunch</td></tr></tbody></table></figure> <!-- /wp:table --> <!-- wp:table --> <figure class="wp-block-table"><table><tbody><tr><td>13:30 - 13:45 - &nbsp;Welcome</td></tr></tbody></table></figure> <!-- /wp:table --> <!-- wp:table --> <figure class="wp-block-table"><table><tbody><tr><td>13:45 - 15:00 - Dr Kate Hellin: Trauma and conflict in families and professionals in the family court: Finding understanding and breaking down barriers.</td></tr></tbody></table></figure> <!-- /wp:table --> <!-- wp:table --> <figure class="wp-block-table"><table><tbody><tr><td>15:00 - 15:15 - &nbsp;Break</td></tr></tbody></table></figure> <!-- /wp:table --> <!-- wp:table --> <figure class="wp-block-table"><table><tbody><tr><td>15:15 - 16:30 - &nbsp;Lee Sobo-Allen: A social work perspective on how to engage fathers in the family justice system.</td></tr></tbody></table></figure> <!-- /wp:table --> <!-- wp:table --> <figure class="wp-block-table"><table><tbody><tr><td>16:30 onward - Networking</td></tr></tbody></table></figure> <!-- /wp:table --> <!-- wp:paragraph --> <p><strong>Venue</strong>: </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.google.com/maps/place/The+Queens+Hotel/@53.795931,-1.5476451,15z/data=!4m8!3m7!1s0x0:0xe41574b975130e8e!5m2!4m1!1i2!8m2!3d53.795931!4d-1.5476451" target="_blank" rel="noreferrer noopener">The Queens Hotel</a><br>City Square, Leeds LS1 1PJ</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Registration Fees</strong>: </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>£45 +vat includes lunch (earn CPD points)</p> <!-- /wp:paragraph --> <!-- wp:heading {"level":4} --> <h4><strong>Registrations are now closed. Thank you</strong></h4> <!-- /wp:heading --> <!-- wp:paragraph --> <p>Find out more about our Family Children team on this <a href="https://www.parklaneplowden.co.uk/expertise/family-children-barristers/" target="_blank" rel="noreferrer noopener">page</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For more details or enquiries please email&nbsp;<a href="mailto:events@parklaneplowden.co.uk">events@parklaneplowden.co.uk</a></p> <!-- /wp:paragraph -->