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Parklane Plowden expand Family Team with KC

Parklane Plowden’s Family Team are delighted to welcome Julia Cheetham KC as a door tenant.  Called in 1990 and Silk since 2015, Julia brings with her an exceptional reputation, dealing with highly complex matters involving children and vulnerable adults.  Julia specialises in:  <ul> <li>Family</li>  <li>Child care</li>  <li>Court of Protection</li>  <li>Community Care Law</li>  <li>Medical</li>  <li>Human Rights</li>  <li>International and Overseas Territories Law</li> </ul>  Julia’s particular area of specialism is in complex cases where one parent has killed another or where a child has been unlawfully killed. Julia has represented parents, children, and local authorities in such cases many of which have involved high-profile criminal cases and/or serious case reviews.  “Julia is a fantastic addition to Parklane Plowden’s already unrivalled childcare expertise on Circuit, her experience will only enhance the team’s strength in this area.” Mark Williams, Senior Practice Director.  For further information on the group’s services and expertise, please contact <a href="https://www.parklaneplowden.co.uk/clerks/mark-williams/">Mark Williams</a>, Senior Practice Director to the Family Team on 0113 228 5043.

New Rules for Standard Family Orders – Public Law

On the 17th May 2023 Mr Justice Peel announced a number of changes to the Standard Family Orders, along with guidance as to how such orders should be drafted. This article sets out the main changes with an emphasis on their relevance for Public Family Law practitioners.  The new pro forma Standard Family Orders can be found here:  <a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip">https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip</a>  <a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip">https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip</a>  The key changes are:  <ul> <li>The orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing.</li>  <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles.</li>  <li>The orders include a Permission to Appeal directions order.</li>  <li>The orders incorporate the changes to law and practice brought by the withdrawal of the United Kingdom from the European Union.</li>  <li>The orders incorporate the new required forms for cases involving committal applications.</li>  <li>The orders incorporate an updated Deprivation of Liberty order, an updated standalone Port Alert order and the correct contact details for any disclosure request to NHS England.</li>  <li>The children orders reduce significantly the use of recitals. In general, recitals now appear at the end of children orders, giving greater prominence to the body and substance of the orders.</li>  <li>In the children orders, there are separate orders for different stages of public law and private law proceedings, all of which have been made more streamlined.</li> </ul>  House Rules  Mr Justice Peel sets out the ‘House Rules’ for the drafting of Family Orders, the main points of these are summarised below.  Recitals  <ul> <li>Recitals in a children order shall appear in a schedule at the end of the order.</li>  <li>Recitals must only record necessary information, drafted in a short and neutral manner.</li>  <li>Recitals should not:<ul><li>record what happened in the hearing</li></ul><ul><li>record the parties’ position</li></ul><ul><li>recite the documents which the court read (unless it was a without notice hearing)</li></ul> <ul> <li>recite the witnesses who were heard (unless it was a without notice hearing)</li> </ul> </li> </ul>  Disclosure Orders  <ul> <li>Disclosure orders against third parties should each be drawn as a separate order</li>  <li>The main order should include, in the body of the order, what disclosure orders have been made and the date by which the disclosure should be made.</li> </ul>  Format of order  <ul> <li>The body of orders should always be prepared in Times New Roman font, 12 point, with single spacing.</li>  <li>Orders should be consecutively numbered from 1 irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order. The schedule of recitals shall recommence as paragraph 1.</li>  <li>The next hearing should appear at the start of the Order, with the following orders and directions in chronological order.</li>  <li>Parties:<ul><li>The parties shall be specified at the beginning of the order.</li></ul><ul><li>Children shall be referred to by their first forename and surname.</li></ul><ul><li>Each child shall be numbered as a separate respondent.</li></ul><ul><li>The children’s guardian shall be referred to as “the guardian”.</li></ul><ul><li>If a party acts by a litigation friend, or a child by a children’s guardian, this must be stated.</li></ul><ul><li>Advocates should be identified on the face of the order as Mr / Mrs / Miss / Ms etc. [surname] or by their first name and surname, with counsel being identified as such.</li></ul><ul><li>Contact details should be included for litigants in person and the solicitor of represented parties. Counsel’s details should not be included.</li></ul><ul><li>Language</li></ul><ul><li>Clear English should be used at all times, avoiding archaic legal language.</li></ul><ul><li>Definitions appear in the recitals. Abbreviations may be used.</li></ul><ul><li>In the body of the order, parties should be referred to by their status (e.g. “applicant” and “respondent”) rather than by their role in the proceedings (e.g. the mother, the father etc.).</li></ul><ul><li>“Their” should be used in a singular sense instead of “his or hers”.</li></ul><ul><li>Where a direction or order is for a party to do something, it must be directed to the party and not to their solicitor.</li></ul><ul><li>Dates must be specified using the full name of the month and year, for example 17 May 2013</li></ul> <ul> <li>Times must be stated using the 24-hour format for example - 17:00 or 12:00</li> </ul> </li> </ul>

Drafting Family Orders – the New ‘House Rules’ and Standard Family Orders – May 2023 | Part 2 – Financial Provision and Divorce Orders

The revision to Standard Family Orders (SFO) released on 17 May 2023 are said to: “Reflect changes in law, practice, and procedure. In part, they have been amended to achieve internal consistency and clarity of phraseology. Formatting and stylistic improvements have also been made.” (Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders).  In Part 1, Katherine Goss set out the May 2023 key changes to Private Children orders : <a href="https://www.parklaneplowden.co.uk/new-house-rules-and-standard-family-orders-may-2023/">https://www.parklaneplowden.co.uk/new-house-rules-and-standard-family-orders-may-2023/</a>  This second advisory note therefore concentrates on the May 2023 key changes to the Financial Provision and Divorce orders as a result of the May 2023 revision and also sets out in summary the new “House Rules” on how to draft orders.  As before, the SFOs do not have the status of “forms” under FPR Part 5. The default position is that they should be used, but parties and the court are permitted to adapt them to such extent as may be appropriate.  <a href="https://www.judiciary.uk/guidance-and-resources/advisory-notice-by-mr-justice-peel-judge-in-charge-of-the-standard-orders/">Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders - Courts and Tribunals Judiciary</a>.  Click on the above link to access:  <ul> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/HouseRules.May2023.docx">Download HouseRules.May2023.docxfile</a></li>  <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip">Download SFO-Vol-1-150523.zipfile</a></li>  <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip">Download SFO-Vol-2-150523.zipfile</a></li> </ul>  The Family Orders May 2023 ‘House Rules’ are then in summary :  1) All orders made by the Family Court and the High Court (Family Division) are to be in the standard forms as contained in Vol 1 and 2 so when drafting orders, whether by consent or following a hearing you should use the standard order templates adapted as appropriate to the facts of the case.  2) Recitals -in a financial order these should appear at the beginning of the order BUT in a children order they are to be at the end of the order. Recitals must only record necessary information, drafted in as short and neutral a manner as possible. They should not record what happened in the hearing and should be limited to essential background matters which are not part of the body of the order. Any purported views of the court which did not form part of the court’s decision should not be recited. The recording of a party’s position before, during, or after the hearing as a recital should cease unless the standard order template requires such information.  3) Do Not - recite the documents read, or witnesses heard, save without notice hearings, in which case the details shall be recorded in a recital as shall the reason for the hearing being made without notice    4) Third party disclosure orders/non-party orders need to be done as separate orders  not contained in the main order from the proceedings, but the main order should record that separate order(s) have been made and  should identify what the separate order was for and the date by which any information / evidence arising from that order is to be disclosed.  5) Format of order:  a. The body of orders should always be prepared in Times New Roman font, 12 point, with single spacing.  b. An order shall be consecutively numbered from 1 irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order. Where possible, and in any event as provided in the standard order templates, recitals in children cases should appear in a schedule to the order. The numbering of paragraphs in any schedule shall recommence as paragraph 1.  c. Subparagraphs, to two levels only, are permitted and shall be numbered (a), (b) etc, then (i), (ii) etc (with or without brackets).  d. So far as possible, the order should contain orders and directions in a chronological order, save that the directions in respect of the next hearings should appear at the start of the order.  e. An order shall state in its heading the statute(s), or European Regulation(s), or Protocol under which the powers in question are exercised. It shall not state that the inherent powers of the court are being exercised.  6) Parties:  a. The parties shall be specified at the beginning of the order.  b. Use the “applicant” and the “respondent” not in the main suit (i.e. petitioner and respondent) save in respect of orders made in the main suit.  c. Children shall be referred to by their first forename and surname.  d. Each child shall be numbered as a separate respondent.  e. The children’s guardian shall be referred to as “the guardian.”  f. If a party acts by a litigation friend, or a child by a children’s guardian, this must be stated in the paragraph of the order detailing the parties to the proceedings.  7) Where a party was represented by an advocate, that advocate shall be named on the face of the order. Formality of naming should be preserved, with the advocate being identified as “Mr / Mrs / Miss / Ms etc. [surname]” or by their first name and surname. If the advocate is counsel, the order should so state.  8) Where a standard order template requires contact details to be inserted into the paragraph detailing the parties to the proceedings, those contact details shall be of the party if a litigant in person, or of the solicitors on the court record if the party is represented. Contact details for counsel should not be used.  9) Clear English (or Welsh in Wales) should be used at all times. Archaic legal language (“the party of the first part,” “hereinabove,” “heretofore” etc.) should be avoided.  10) If definitions are required, they shall appear in the recitals. Abbreviations may be used.  11) In the body of the order, parties should be referred to by their status (e.g. “applicant” and “respondent”) rather than by their role in the proceedings (e.g. the mother, the father etc.)  12) Although not grammatically pure the plural pronoun “their” should be used in a singular sense instead of “his or hers.”  13) An obligation to do an act as provided for in an order shall be taken to include causing the act to take place. Thus the phrase “or cause to be paid,” does not need to be included in an order.  14) An obligation to do an act within a specified period shall state the actual date and time by which the act must be done.  15) Where a direction or order is for a party to do something, it must be directed to the party and not to their solicitor.  16) Dates shall be specified and must use the full name of the month and the year in full form (e.g. 17 May 2013 and not 17th May 2013 or 17/5/13 or May 17th, 2013 or “this 17th day of May 2013”). Times must be stated using the 24-hour format (e.g. 17:00 or 12:00, not 5pm or noon.)  17) Distances should be specified metrically up to 1,000 metres. Beyond that distance either system, imperial or metric, may be used.  18) Monetary sums shall be denoted numerically, save that for sums expressed in millions the abbreviation “m” may be used. Other variants e.g. “M” or “millions” should not be used. Currencies shall be expressed by the usual symbols. Thus, for example, £, €, US$ and A$ should be used, not GBP, EUR, USD, and AUD.  Changes to the Standard Family Orders (Financial Provision)  Key Practical issues and the need for change:  <ul> <li>The SFO ‘long directions order’ was (in the 2020 incarnation) at 46 pages extremely long and needed wholesale revision.</li>  <li>Across the board the orders needed to accommodate directions for remote hearings and electronic bundles and to update the forms in the light of the Efficient Conduct Statement.</li>  <li>Given that the Divorce Dissolution and Separation Act 2020 is now in force the terminology used in divorce, dissolution, nullity, and separation proceedings needed updating  </li> </ul>  Specific changes  <ul> <li>The ‘long’ directions order is now down to 32 pages from 46 pages .</li>  <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles (paragraph 76 Order 7.0 Vol 2)</li>  <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a Qualified Legal Representative (Vol 2 Orders 24.1-24.7)</li>  <li>The orders contain directions supporting the Statement on the Efficient Conduct of Financial Remedy proceedings in the Financial Remedies Court Below High Court Judge level.</li>  <li>The Financial Directions Orders  (Order 1.1 and 1.2) orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing. This extends to there being in the Order 1.1 Long version specific reference t<a>hat the court is highly likely in the first instance to make an order for a single joint expert report and that it is only as a result of a Daniels v Walker application, or for some other reason, that the court permits one or both parties to obtain their own expert report</a>.</li> </ul>  <ul> <li>The financial orders include additional undertakings such as (i) not applying for decree absolute/final decree until 28 days after the making of a financial order (relevant for the making of a pension sharing order); (ii) removal of Land Registry notices; and (iii) obtaining a Get.</li>  <li>The orders incorporate the provisions of the Divorce and Dissolution Act 2020, incorporating the new terminology for divorces – conditional order and final order in place of decree nisi and decree absolute – although retaining both options for the time being while this change takes effect.</li>  <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a Qualified Legal Representative.</li>  <li>The financial orders include draft costs orders updated to reflect changes in practice and guidance on costs.</li>  <li>The financial orders include draft directions and substantive orders on pensions updated to reflect changes in practice and guidance in this area.</li>  <li>The financial orders include a free-standing draft order to accommodate the Accelerated First Appointment procedure.</li>  <li>The orders include a Permission to Appeal directions order.</li>  <li>Warning notices have been updated and made consistent.</li> </ul>  Conclusion  It would serve all practitioners well to always have the ‘House Rules’ in mind to ensure that Orders do not require amendment by the court and to update personal templates with the new SFO’s.  <div class="wp-block-group"> Julia Nelson is the head of the family law team at Parklane Plowden Chambers. Julia's practice specialises in Financial Provision and Private Children Law. </div>

14 June 2023 | FAMILY HYBRID SEMINAR SERIES: PRIVATE FAMILY LAW

Parklane Plowden's family specialists, Naakesha Michl and Naomi Hartridge will be discussing the public and private implications of Parental Alienation.  <a href="https://www.parklaneplowden.co.uk/our-barristers/naakesha-michl/">Naakesha Michl</a> joined Parklane Plowden in January 2022 after spending the first 6 years of her career at the Bar at KBW Chambers. She specialises in all areas of family law, including public and private children law and finance.  <a href="https://www.parklaneplowden.co.uk/our-barristers/naomi-hartridge/">Naomi Hartridge</a> qualified as a Solicitor in 1999 and initially worked in white collar crime in Harley Street, London. Naomi then transferred to the Bar in 2017. Within her private law practice Naomi has been instructed on matters involving parental alienation, international relocation, non-accidental injury, sexual offences and a variety of protracted contact and parenting issues.  This event will be taking place in our Leeds Chambers on 14th June from 5 PM onwards. This is a hybrid event and attendance is possible via Zoom.  Sign up to this event <a href="http://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x9BAE882720B3E2DD|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x9BAE882720B3E2DD|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|">here</a>.

Julia Nelson Head of Parklane Plowden’s Family Team

Parklane Plowden is delighted to announce that Julia Nelson is now head of Parklane Plowden's Family Team. Julia will be replacing Sara Anning.  Chambers would like to thank Sara for her commitment and work that has gone into this role.  Julia has 30 years’ experience in family law and is a specialist in both matrimonial finance and private children law as well as sitting as a children law arbitrator.  Parklane Plowden acts for a range of clients, including local authorities, parents, and guardians, in a variety of children law proceedings. The cases undertaken by the barristers often involve serious abuse and injuries, as well as complex issues such as international abduction, relocations, and parental neglect. The set is a first port of call for instructing solicitors handling care proceedings. The set also possesses impressive strength in financial remedy cases, and the barristers are equipped to handle cohabitation disputes and cases involving complex assets. A source comments: "There is not a case too complex that cannot be supported by a member of chambers." [Chambers and Partners, 2023].  Congratulations to Julia and many thanks to Sara!

04 April 2023 | Family Hybrid Seminar: Private Family Law

Parkalne Plowden's family specialists, Shabab Rizvi and pupil Rajni Virk will be giving 'an updated overview of the legal approach to domestic abuse in private family law proceedings.' Both specialists will be considering Part 3A and vulnerable witnesses, and the practicalities of the cases involving domestic abuse / PD12J. They will also consider scott schedules / allegations.  This event will be taking place in our Leeds Chambers on the 04 April from 16:30 onwards with the seminar starting at 17:00. As this is a hybrid event, you can also join the webinar via Zoom.   You can sign up to this seminar <a href="http://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x9BAE882720B3E2DD|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x9BAE882720B3E2DD|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|">here</a>.

D v R [2023]: An important reminder of the application of Part 3A and Practice Direction 3AA

[2023] EWHC 406 (Fam)<a href="#_ftn1" id="_ftnref1">[1]</a>  Rajni Virk, Pupil Barrister  In this recent authority, Mrs Justice Theis DBE considers an appeal following a fact-finding hearing on the grounds that Part 3A and Practice Direction 3AA Family Procedure Rules 2010 were not complied with by the judge. This appeal was allowed, the findings were set aside and the case was remitted to the Designated Family Judge to consider a re-hearing. This case provides a helpful legal framework of the important provisions when the case involves a vulnerable party.  Background  The parties had been in a relationship since 2015, married in May 2019 and separated in June 2021. They had one child together (X) who was born in 2020. Since separation, X remained living with the mother. The father made an application in December 2021 to spend time with X. During the proceedings, the mother made allegations of domestic abuse against the father. The fact-finding hearing took place remotely in September 2022 before Recorder Bradberry, it lasted for four days and both parties were legally represented.  The mother appealed the judgment on the grounds that the judge failed to comply with the court’s duties under Part 3A and Practice Direction 3AA Family Procedure Rules 2010 (‘FPR’) and section 62 Domestic Abuse Act (‘DAA’) and how the court dealt with section 98 Children Act 1989.  Legal Framework  At paragraphs 19 – 24 Mrs Justice Theis DBE helpfully sets out the key law applicable to appeals and participation of vulnerable parties in proceedings.  Appeals  An appeal may only be allowed where the decision of the court was wrong or there was a procedural irregularity, such that the decision made was unjust<a href="#_ftn2" id="_ftnref2">[2]</a>. This conclusion can be reached by the appellate court where;  <ol type="a"> <li>there has been an error of law;</li>  <li>the judge had clearly failed to give due weight to some very significant matter or, by contrast, has clearly given undue weight to some matter not deserving of it<a href="#_ftn3" id="_ftnref3">[3]</a>;</li>  <li>that a conclusion has been reached on the facts before the court which was not open to the judge reaching them on the evidence<a href="#_ftn4" id="_ftnref4">[4]</a>;</li>  <li>that a process has been adopted at the court below which is procedurally irregular and unfair to such an extent that it renders the decision made unjust<a href="#_ftn5" id="_ftnref5">[5]</a>; or</li>  <li>that a discretion has been exercised which is outside the parameters within which it is possible to heave reasonable disagreement<a href="#_ftn6" id="_ftnref6">[6]</a>.</li> </ol>  Participation of Vulnerable Parties  This is governed by FPR Part 3A “Vulnerable Persons: Participation in Proceedings and Giving Evidence” and is supplemented by Practice Direction 3AA (‘PD3AA’). No definition is given to ‘vulnerability’ however, some factors the court may consider are set out in PD3AA paragraph 2.1. These provisions were introduced in 2017 and FPR 3A was amended in 2022 for cases involving allegations of domestic abuse. These changes were helpfully summarised by Mrs Justice Knowles in Re M (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam), which highlighted the inclusion of Rule 3A.2A; ‘Court’s duty to consider making participation directions: victims of domestic abuse’ and the amendments following the implementation of the Domestic Abuse Act 2021 (particularly section 63).  In her judgment, Mrs Justice Theis DBE identifies Mrs Justice Knowles’ summary in Re M as essential reading for any judge involved in proceedings with allegations of domestic abuse. A summary of the steps that a court should follow in these circumstances are:  (1) Is this a case where there are allegations of domestic abuse within the definition of  section 1 DAA? Section 1 defines “domestic abuse” as follows:  (2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if –  (a) A and B are each aged 16 or over and are personally connected to each other, and  (b) the behaviour is abusive.  (3)Behaviour is “abusive” if it consists of any of the following –  (a) physical or sexual abuse;  (b) violent or threatening behaviour;  (c) controlling or coercive behaviour;  (d) economic abuse;  (e) psychological, emotional or other abuse;  and it does not matter whether the behaviour consists of a single incident or a course of conduct.  (4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to –  (a) acquire, use or maintain money or other property, or  (b) obtain goods or services.  (5) For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the  fact that it consists of conduct directed at another person (for example, B’s child)”.  (2) If there are allegations of domestic abuse s 63 DAA applies and Rule 3A.2A provides:  3A.2A Court’s duty to consider making participation directions: victims of domestic abuse  (1) “where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, a relative of another party, or a witness in the proceedings, the court must assume that the following matters are diminished –  (a) the quality of the party’s or witness’s evidence;  (b) in relation to a party, their participation in the proceedings”…  (3) Where the assumption set out in paragraph (2) above applies, the court “must consider whether it is necessary to make one or more participation directions” (Rule3A.2A(3)) (emphasis added). Participation directions are often referred to as ‘specialmeasures’.  (4) It is important to keep in mind, and distinguish between, the need for participation directions to facilitate participation in a hearing from those relating to how evidence is given. As regards participation in a hearing, there is a need for that to be considered at the start of the proceedings (and kept under review), whereas those applying to the giving of oral evidence may be additional and/or different to any earlier participation directions. As regards those that may be required for giving evidence, they may best be considered after the written evidence has been filed.  (5) A ground rules hearing should be held. PD3AA para 5.2 states “When the court has decided that a vulnerable party, vulnerable witness or protected party should give evidence there shall be a “ground rules hearing” prior to any hearing at which evidence is to be heard, at which any necessary participation directions will be given’. There is no need for this to be a separate hearing to any other hearing in the proceedingsbut a part of the hearing should specifically relate to consideration of any participationdirections.  (6) Rule 3A.7 sets out a list of matters to which the court must have regard to “when deciding whether to make one or more participation directions:  (a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of –  (i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or  (ii) any members of the family of the party or witness;  (b) whether the party or witness –  (i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;  (ii) has a physical disability or suffers from a physical disorder; or  (iii) is undergoing medical treatment;  (c) the nature and extent of the information before the court;  (d) the issues arising in the proceedings including (but not limited to) any  concerns arising in relation to abuse;  (e) whether a matter is contentious;  (f) the age, maturity and understanding of the party or witness;  (g) the social and cultural background and ethnic origins of the party or witness;  (h) the domestic circumstances and religious beliefs of the party or witness;  (i) any questions which the court is putting or causing to be put to a witness in  accordance with section 31G(6) of the 1984 Act<a href="#_ftn7" id="_ftnref7">[7]</a>;  (j) any characteristic of the party or witness which is relevant to the participation  direction which may be made;  (k) whether any measure is available to the court;  (l) the costs of any available measure; and  (m) any other matter set out in Practice Direction 3AA”.  (7) The court may make such directions for the measures specified in Rule 3A.8. In addition, the court may use its general case management powers as it considers appropriate to facilitate the party’s participation (para 4.2 of PD 3AA).  (8) The measures set out in Rule 3A.8 “are those which –  (a) prevent a party or witness from seeing another party or witness;  (b) allow a party or witness to participate in hearings and give evidence by live link;  (c) provide for a party or witness to use a device to help communicate;  (d) provide for a party or witness to participate in proceedings with the assistance of an intermediary;  (e) provide for a party or witness to be questioned in court with the assistance of an intermediary; or  (f) do anything else which is set out in Practice Direction 3AA”.  (9) The court should set out its reasons on the court order for making, varying, revoking or refusing any directions in FPR Part 3A (Rule 3A.9).  Mrs Justice Theis DBE also referred to the decision of Baker LJ in A v A Local Authority and others [2022] EWCA Civ 8, specifically paragraphs 41-42. In particular, Baker LJ states when discussing Part 3A; “All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly.” Importantly, Baker LJ goes on to say that “It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust.”  Submissions  In relation to ground 1, it was submitted on behalf of the appellant that the serious nature of the allegations in this case encompass the meaning of domestic abuse. Thus, under FPR rule 3A.2A the mother should have been identified as someone who was a vulnerable party, and the court was under a duty to consider if any participatory directions were required when she gave evidence. It was submitted that the court wholly failed in this duty and in the judge’s conclusions about the mother’s evidence, the judge noted the mother’s inconsistencies. It was submitted on the mother's behalf that no account was taken of her vulnerabilities as a complainant of domestic abuse, and what potential impact this may have had on her evidence. Further, the failure to comply with the mandatory requirements of FPR Rule 3A was a serious procedural error, resulting in the hearing being unfair and unjust. The submissions in relation to ground 2 covered similar legal points. It was submitted that the judge was wrong to replay videos without having a ground rules hearing to consider any potential impact this may have on the mother as a vulnerable witness and any participation directions that should be made.  The father, who appeared in person, provided a written skeleton argument and oral submissions. He submitted that there would simply be no difference in the final outcome and the function of a remote hearing would have assisted the mother. At no point did the mother ask for her camera to be switched off, she had breaks during her evidence and the videos were required to be played as she disputed facts.  Decision and Conclusion  Whilst considering her decision, Mrs Justice Theis DBE reiterated historic appeals in relation to compliance with FPR Part 3 and PD3AA at [34]. The recurrent grounds resulting in a successful appeal were on the “basis of procedural irregularity where the court had failed to comply with its duty to consider the vulnerability of a party or a witness, and to then, in turn, hold a ground rules hearing and consider what, if any, participation directions should be made.”<a href="#_ftn8" id="_ftnref8">[8]</a> Mrs Justice Theis DBE also drew attention to the fact that neither party’s legal representative raised this as an issue and these requirements “should now be embedded in the legal landscape of these cases to ensure the important safeguards they provide are kept under active review.”<a href="#_ftn9" id="_ftnref9">[9]</a>  The appeal was allowed on grounds 1 and 2 and the detailed reasons are set out at [37]. As the appeal was successful on these grounds, it was deemed not necessary to consider the last ground. The reasons are in summary;  <ol type="a"> <li>No ground rules hearing took place nor was it considered;</li>  <li>This lack of consideration, it left a gap in the safeguards for a vulnerable witness;</li>  <li>At no point did the court consider or address any participation directions for a vulnerable witness, whether needed or not;</li>  <li>Allegations involved intimate details of the parties’ relationship;</li>  <li>No consideration was given to the video evidence; and</li>  <li>The totality of failing to consider Part 3A and the lack of consideration of the mother’s vulnerability resulted in the hearing being unfair.</li> </ol>  This appeal, together with the decision in Re M, provide a helpful summary of the law in relation to vulnerable witnesses for practitioners. Further, it highlights a duty, not only for the court, but also representatives to ensure that this issue is continually reviewed throughout proceedings. There have been increasingly more and more cases that invoke Practice Direction 12J, where the nature of the allegations involve witnesses that fall into the category of being ‘vulnerable’. Therefore, the judgment of Mrs Justice Knowles in Re M and the principles set out in this appeal should remain at the forefront of practitioners’ minds when involved in such cases.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://www.bailii.org/ew/cases/EWHC/Fam/2023/406.html">D v R [2023] EWHC 406 (Fam) (24 February 2023) (bailii.org)</a>  <a href="#_ftnref2" id="_ftn2">[2]</a> FPR rule 30.12 (3)  <a href="#_ftnref3" id="_ftn3">[3]</a> B v B (Residence Orders: Reason for Decision) [1997] 2 FLR 602  <a href="#_ftnref4" id="_ftn4">[4]</a> Royal Bank of Scotland v Carlyle [2015] UKSC 13  <a href="#_ftnref5" id="_ftn5">[5]</a> Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136  <a href="#_ftnref6" id="_ftn6">[6]</a> G v G (Minors: Custody Appeal) [1985] 1 WLR 647  <a id="_ftn7" href="#_ftnref7">[7]</a> Matrimonial and Family Proceedings Act 1984  <a href="#_ftnref8" id="_ftn8">[8]</a> [34]  <a href="#_ftnref9" id="_ftn9">[9]</a> [35]

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

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.  This article considers the decision and the approach to sexual allegations within family proceedings.  Background of the Appeals  The Appeal in ABC  The first appeal considered was the case of ABC.  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).  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.  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.  The Appeal in DE  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.  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.  The Law/Propositions  Each appellant was granted permission to appeal on grounds with common themes.  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.  The Role of the Appellate Court  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 “wrong” or “unjust because of a serious procedural or other irregularity in the lower court”<a href="#_ftn1" id="_ftnref1">[1]</a>. Knowles J also drew attention to the observations in Re H-N<a href="#_ftn2" id="_ftnref2">[2]</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">[3]</a> Further legal principles were set out by Knowles J from leading authorities and concluded at [12] that “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.”  Legal Context  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 criminal law. This was clearly set out by McFarlane LJ (as he was) in Re R<a href="#_ftn4" id="_ftnref4">[4]</a>:  “(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.  (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.  (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.  (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.”  This guidance was also reconfirmed in Re H-N, though in JH v MF<a href="#_ftn5" id="_ftnref5">[5]</a> 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>.  In considering these cases for appeal, Knowles J adopted the principles set out in Re R and confirmed in Re H-N.  The Propositions and Law  Knowles J considered propositions 1 and 3 together.  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.  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.  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.  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 “unnecessarily bogged down in legal technicality”<a href="#_ftn7" id="_ftnref7">[7]</a>. Moreover, as McFarlane LJ considered in Re R, 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 ‘willing’, which the Judge considered too narrow and as prescriptive as applying criminal law concepts. Knowles J was of the view that this was “too narrow a prism through which to view and investigate the true nature of an adult relationship.”  Knowles J also considered the danger of adopting too narrow a focus on sexual relationships between adults, as set out in K v K<a href="#_ftn8" id="_ftnref8">[8]</a>. In this recent appeal, the judge was criticised for not standing back at looking at the evidence as a whole.  Knowles J also rejected the argument that PD12J fails to contain a framework to determine sexual abuse. At [29] she states that “PD12J sets out a specific procedural 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.”  Accordingly, the argument that the family court should apply consistent definitions of rape, sexual assault and consent was rejected.  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>  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  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).  At most there were different decisions made by different judges on different facts and evidence, a feature of the fact finding process itself.  The Appellants referred the judge to the Istanbul Convention<a href="#_ftn9" id="_ftnref9">[9]</a>. However, the judge considered that the ‘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>’<a href="#_ftn10" id="_ftnref10">[10]</a>. It could not sensibly be argued that the family court fails to do so.  Thus, Knowles J determined that Proposition 2 had not been made out by the Appellants.  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  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.  Knowles J stated [46]:  <a>“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:</a>  (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 "wide canvas" of evidence;  (b) Thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved;  (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.”  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).    Knowles J gave the following legal framework to assist family judges in case management of evidence relating to ‘sexual history’ at [58]:  <ul> <li>If a party wishes to adduce evidence about a complainant's sexual history with a third party, a written application should be made in advance for permission to do so, supported by a witness statement.</li>  <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>  <li>Any such application will require the court's adjudication preferably at a case management hearing.</li>  <li>The court should apply the approach set out at [45]-[49].</li>  <li>If a party wishes to rely on evidence about sexual history between partners, 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 Re M (Intimate Images)<a href="#_ftn11" id="_ftnref11">[11]</a>.</li>  <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>  <li>Any such application will require the court's adjudication preferably at a case management hearing.</li>  <li>The court should apply the approach set out at [45]-[49] of the judgment.</li> </ul>  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.  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.    Decision  The Appeal in ABC  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 Re H-N. 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 ‘very troubling’<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.  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 ‘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>’.<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.  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.  The Appeal in DE  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>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 Re H-N at [71])</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.  Knowles J stated “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.”   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.  Conclusion  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.  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: ‘<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>’<a href="#_ftn16" id="_ftnref16">[16]</a>  A final observation from Knowles J was made, of key importance to management of cases concerning allegations of physical, sexual, emotional and domestic abuse.   Neither judge at first instance had themselves produced schedules of findings (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  add to the pressures of busy family law judges, such a schedule represents good practice “<a>which may help to illuminate a judge's evaluation of the evidence and to inform their ultimate findings</a>.”  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> FPR rule 30.12(3)  <a href="#_ftnref2" id="_ftn2">[2]</a> Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448  <a href="#_ftnref3" id="_ftn3">[3]</a> Re H-N at [2]  <a href="#_ftnref4" id="_ftn4">[4]</a> Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198, [82]  <a href="#_ftnref5" id="_ftn5">[5]</a> JH v MF (Child Arrangements) [2020] 2 FLR 344  <a href="#_ftnref6" id="_ftn6">[6]</a> JH v MF [46]  <a href="#_ftnref7" id="_ftn7">[7]</a> Cobb J in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) at [29]  <a href="#_ftnref8" id="_ftn8">[8]</a> K v K [2022] EWCA Civ 468  <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)  <a href="#_ftnref10" id="_ftn10">[10]</a> [42]  <a href="#_ftnref11" id="_ftn11">[11]</a> Re M (A Child)(Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam)  <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 "Rape and Sexual Offences - Annex A: Tackling Rape Myths and Stereotypes"</a>  <a href="#_ftnref13" id="_ftn13">[13]</a> [83]  <a href="#_ftnref14" id="_ftn14">[14]</a> [89]  <a href="#_ftnref15" id="_ftn15">[15]</a> [124]  <a href="#_ftnref16" id="_ftn16">[16]</a> [127]

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

In F v M [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 F v M [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 H-N and other (Children) (Domestic Abuse: Finding of Fact Hearings) (Rev 2) [2021] EWCA Civ 448. This particular judgment, however, focuses on the aftermath of findings.  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?  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:  <ol type="1"> <li>No Contact Orders- and how even annual indirect contact can be inappropriate</li>  <li>Parental Responsibility- and the disparity between married and unmarried fathers when it comes to removal of PR.</li>  <li>‘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.</li> </ol>  This case law update will briefly discuss each of these three highlighted issues that arise within Hayden J’s judgment.  No Contact Orders- and how even annual indirect contact can be inappropriate  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.  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].  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].  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.  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].    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.  Parental Responsibility- and the disparity between married and unmarried father’s when it comes to removal of PR.  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.  Hayden J provides a helpful summary of the key issues around whether it is compatible with the European Convention on Human Rights  (‘ECHR’) to have such a distinction between married and unmarried fathers through reference to both Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) [2016] 2 FLR 977 and MZ v FZ and Others [2022] All ER (D) 130.  Hayden J appears to agree with Russell J in MZ v FZ 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].  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.  ‘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.  Within this helpful judgment, Hayden J references an earlier decision of  Lady Justice King in in Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [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].  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.”  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].  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].  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.  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.  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.  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.  Whilst not a case setting precedent, another recent case with a section 91(14) Order made is that of TF v DL v E&P [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.  Conclusion  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.  Further Reading:  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 Naakesha Michl’s article from 8 February 2022: <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/">https://www.parklaneplowden.co.uk/private-law-children-cases-involving-allegations-of-domestic-abuse-recent-case-law-and-the-domestic-abuse-act-2021/</a>  See also Chloe Branton’s case law update regarding special measures in fact finding hearings 12 January 2022: <a href="https://www.parklaneplowden.co.uk/special-measures-in-finding-of-fact-hearings-m-a-child-2021-ewhc-3325-fam/">https://www.parklaneplowden.co.uk/special-measures-in-finding-of-fact-hearings-m-a-child-2021-ewhc-3325-fam/</a>  Chloe also published a piece on special measures in the June 2022 edition of the Family Law Journal: <a href="https://www.familylaw.co.uk/news_and_comment/special-measures-re-m-(a-child)-practical-tips">https://www.familylaw.co.uk/news_and_comment/special-measures-re-m-(a-child)-practical-tips</a>  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: <a href="https://www.parklaneplowden.co.uk/replay-domestic-abuse-in-private-law-proceedings-seminar-19-july-2022/">https://www.parklaneplowden.co.uk/replay-domestic-abuse-in-private-law-proceedings-seminar-19-july-2022/</a>

Family: Childcare Conference 24 June 2022

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&A panel with PLP barristers and local experts. Please email questions for the panels.  Keynote Speakers and Topics  <div class="wp-block-group"> <ul><li><a href="https://www.familylaw.co.uk/authors/dr-kate-hellin" target="_blank" rel="noreferrer noopener">Dr Kate Hellin</a>: Trauma and conflict in families and professionals in the family court: Finding understanding and breaking down barriers.</li></ul>  Panel  <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 & Hall.</li><li>Karen Kirby, Team Manager, Futures Service.</li><li>Emma Ross, Programme Manager, Futures Service.</li></ul>  --0--  <ul><li><a href="https://www.leedsbeckett.ac.uk/staff/lee-sobo-allen/" target="_blank" rel="noreferrer noopener">Lee Sobo-Allen</a>: A social work perspective on how to engage fathers in the family justice system.</li></ul>  Panel  <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> </div>  Programme:  <figure class="wp-block-table"><table><tbody><tr><td>12:30 - 13:30 -  Registration & Lunch</td></tr></tbody></table></figure>  <figure class="wp-block-table"><table><tbody><tr><td>13:30 - 13:45 -  Welcome</td></tr></tbody></table></figure>  <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>  <figure class="wp-block-table"><table><tbody><tr><td>15:00 - 15:15 -  Break</td></tr></tbody></table></figure>  <figure class="wp-block-table"><table><tbody><tr><td>15:15 - 16:30 -  Lee Sobo-Allen: A social work perspective on how to engage fathers in the family justice system.</td></tr></tbody></table></figure>  <figure class="wp-block-table"><table><tbody><tr><td>16:30 onward - Networking</td></tr></tbody></table></figure>  Venue:  <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> City Square, Leeds LS1 1PJ  Registration Fees:  £45 +vat includes lunch (earn CPD points)  <h4>Registrations are now closed. Thank you</h4>  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>.  For more details or enquiries please email <a href="mailto:events@parklaneplowden.co.uk">events@parklaneplowden.co.uk</a>

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