A history of violence

Public law cases often start with a background of private law residence and contact disputes and issues relating to domestic violence between the parties. This then escalates into child care proceedings. Valerie Sterling explains the procedures in this chain of events.

In today’s economic climate, in which close scrutiny is paid to how public funds are spent particularly in private law contact disputes, it is of interest to examine, in two recent cases set out below, how the courts are interpreting the 2009 Practice Direction (2009) 2 FLR 1400 on domestic violence in residence and contact orders.

Practitioners will be aware of the competing interests, namely of the need to protect the safety of children when direct contact is progressing say to unsupervised contact out of the contact centre – but taking into account the historical background which may incorporate a history of domestic violence.

The holding of a preliminary hearing is a ‘matter of discretion’ for the trial judge who must explain his or her reasons if the request for a fact-finding hearing is refused: See Re C below.

Background

The 2009 Practice Direction re-issued the Practice Direction of 9 May 2008 to reflect the House of Lords decision of Re B (Care Proceedings: Standard of Proof) (2008) 2 FLR 41 in which Baroness Hale said (at Para 76) that a fact-finding hearing was "merely part of the whole process of trying the case" and was "not a separate exercise".

Re C (Domestic Violence: Fact Finding Hearing) 2010 1 FLR 1728

In this case, a fact finding hearing was refused by the trial judge and the mother’s subsequent appeal was dismissed. (Court of Appeal Thorpe and Maurice Kay LJJ 15.7.09)

See Thorpe LJ at paragraphs 13 to 18: "A number of things need to be made plain. First, the obligation on the judges in the county court to conduct fact-finding hearings where there have been allegations of domestic violence arises from the judgments of this court in the conjoined appeals of Re L (A Child) (Contact: Domestic Violence) (2000) 2 FLR 334. At that date, now nine years ago, this court considered a situation in which it was widely said by researchers that district judges up and down the country were ignoring the investigation of past violence on the grounds that it was all history and that the focus should be on the future progress of contact. Accordingly, in our judgments we said that ordinarily speaking the history was of considerable importance and should be established before the exercise of judicial discretion as to the future. Those judgments had a wide impact and perhaps the members of this court gave insufficient attention to the burden that they were placing on judges and district judges in the county court up and down the jurisdiction."

In Re C, it was held by the Court of Appeal that the most recent guidance issued by the President made it clear that the holding of a fact-finding preliminary hearing was always a matter of discretion for the judge, provided that the judge refusing to hold such a hearing sufficiently explained him or herself. The judge had done precisely what he was supposed and entitled to do, namely to exercise a broad common sense discretion giving a proper explanation of his reasons.

AA v NA and Kab (Fact-Finding Hearing) (2010) EWHC 1282 (Fam) – appeal – Mostyn J, 10 June 2010

A fact finding hearing should only be ordered if the court considering setting one up can discern a real purpose for such a hearing.

A father appealed against findings of violence against his wife and children made in contested residence and contact proceedings which took place over 17 days spread over nine months in which the parents had made a total of 89 allegations against each other in their Scott Schedules. The mother had made a further list of allegations.

The judge had found in favour of the mother on all of them. The transcript of evidence ran to over 1,600 pages. In the proceedings the children were separately represented by a guardian, solicitors and counsel. Father’s costs were over £120,000 and were privately funded. The mother and guardian were publicly funded.

The allegations in the competing Scott Schedules were on the mother’s case of domestic violence on her by the father and on father’s case, aggression by mother, violence towards the children and poor care of them.

Held – allowing the appeal and setting aside all the findings. There was to be no further fact finding hearing.

Judge Mostyn said (para 28) the "on first reading the judgment my impressions was of a case that had acquired an unstoppable momentum of its own, where the scope and scale of the inquiry, and the investigation of collateral issues, was wholly disproportionate to the allegations in play. Above all, there does not seem to have been any process of pausing for thought as the case ground on throughout 2009 and of asking whether in fact the exercise had any ulterior purpose. If M won on all 89 allegations (as she did) was this going to make any difference to issues of residence and contact? If she won on only half of them, would the result be different? On 23 February 2010 a month after delivery of the judgement the District Judge made an interim shared residence order effectively by consent which provided for an actual equal sharing of the time of the children."

Per Mostyn J: (Paragraph 31 of his judgement) – "It thus seems to me that there is a strong case for arguing, admittedly with the benefit of hindsight, that the whole exercise was completely futile. All that has been achieved is that M now has in her hands a damning series of findings against F which I suspect may come to haunt their future dealing as co-parents of these children."

Mostyn J identified errors of such a scale and degree that the whole judgement was rendered unsafe and should be set aside and there would not be a further fact finding hearing. The parties had agreed equal shared care for the medium term and there would be no purpose to such a hearing.

Valerie Sterling is a barrister at Park Court Chambers (www.parkcourtchambers.co.uk).