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Is there a Case to Answer? Speed, Detail and Re L Hearings

How much evidence should be heard when faced with allegations of domestic violence in family proceedings? Byron James, a barrister at Guildford Chambers, ponders the inherent tensions in balancing speed and detail in the light of the recent cases and the latest President's Direction.

iamge of Byron James barrister Guildford Chambers

Byron James, Barrister, Guildford Chambers

Cautionary note to practitioners: whilst a bad apple may indeed ruin the whole batch, one should not throw the whole batch away as soon as the bad apple is found, each apple should be checked first…. 

Every practitioner who has dealt with domestic violence as a sub-text to the main application will have come across the impact that Re L (A Child) (contact: domestic violence) and other appeals [2000] 4 All ER 609 has had on the structure of the proceedings. This has recently been given further efficacy in the President’s Practice  Direction: Residence and Contact Orders: Domestic Violence and Harm (9th May 2008). The applied structure is simple: the Court must be provided with a schedule of allegations which are then adjudicated upon, i.e. it is determined whether or not the allegations are proved. It appears however that these hearings can prove problematic.

Yet this approach may, perhaps, cause difficulty for the practitioner as there is an inherent competing interest, even within the aforementioned practice direction, between dealing with the hearing “expeditiously” (para. 3) and “considering all the information and evidence available” (para. 5). This competing interest was the subject of an appeal before a strong bench of Thorpe LJ, Wall LJ, Stanley Burnton LJ on 17th July 2008 in the case of Re R (A Child) (2008) (presently unreported). There is, though, a degree of regret that the appeal on the subject of a delicate balancing exercise, was decided in a case where a clearly inappropriate criminal mechanism was applied to family proceedings.

Re R concerned a mother and father who are both Indian nationals, although they had both moved to England following their marriage. There was a child of the marriage born in 2003.  The marriage broke down and the mother took the child out of the family home. The mother cited instances of domestic violence as reasons for her leaving, with the allegations encompassing attacks upon both her and the child. The father’s response to these allegations was to issue an application for a residence order. In the normal way, as stated above, a Re L hearing was directed so as to allow the Court to adjudicate on the allegations of violence.     

For reasons not explored at first instance, the mother then gave her evidence in an inconsistent and contradictory manner with, for example, her written statement being inconsistent with her oral evidence and a magic trick involving an interpreter who managed to be both present and absent on competing accounts of how the mother’s statement was drafted.  Such was the mother’s performance that the father’s representatives felt confident that they need not contest the mother’s allegations any further and entered a submission of ‘no case to answer’, not putting their case to the mother in cross examination.

The writer would imagine most practitioners to be surprised to hear that a submission of no case to answer had been deployed in a Re L hearing. They would be even more surprised to hear that the submission was accepted by the Court. However, the important balancing exercise stated above should be noted here: practitioners are told in the President’s direction to deal with cases expeditiously, something that lawyers are repeatedly told to adopt generally in all proceedings since the Woolf reforms in 1999. The President’s direction also states the importance of the Court dealing with all the evidence and information. Whilst a submission of no case to answer at that stage of the proceedings was almost certainly over exuberant, one can envisage cases where the Court perceives hearing all the evidence as a waste of time. This is especially so when it is obvious that the perpetrator of abuse is found to have been violent (or otherwise harmful). The Courts regularly dismiss historic allegations of abuse when more recent ones are proved. It can often feel at Re L hearings that the Court is asking a closed question: “is this parent violent?”  If there has been proven violence, the degree and extent can be important, but often the label of ’violent parent’ is all the Court are seeking to attach. How often in such cases is the Court keen to hear all the available evidence?

In the present case of Re R, the Court of Appeal had little difficulty in finding that a submission of no case to answer had little or no place in public law care proceedings under the Children Act 1989 and in private law cases: it was simply not appropriate to accept a submission of no case to answer in preliminary fact finding inquiries. The main principle here being that to dismiss the allegations at that stage is to forget that the main proceedings are concerned with the child. The child too is a potential victim and the whole management of the case could be jeopardised if no further investigation of the facts as presented at that stage had been made. Whilst there was also some comment from the bench on the manner in which the first instance judge had handled the issue of ethnicity, not commented on in this article, one assumes that the judge had become increasingly frustrated at the mother’s perceived dishonesty and there was a sufficiently enterprising legal representative willing to capitalise by reference to the criminal mechanism of no case to answer.

The Court of Appeal concluded that, in terms of a general test to be applied in future, it should be assumed that a trial judge in a preliminary fact finding hearing that involved serious allegations of domestic violence should never terminate the case without hearing all the available evidence. The crucial word here, clearly, being ‘all’. The balancing exercise is therefore resolved as a balancing exercise no more, with such a clear statement that handling the case expeditiously should always be secondary to hearing all the available evidence. 

It is in this aspect of the case that one should express regret that the present case threw a red rag to the bullish Court of Appeal bench by the use of the submission of no case to answer. If, perhaps, a more subtle tactic had been employed, that allowed for the balancing exercise to be explored a little more, we would have had more practical guidance. The practicality of the guidance is questioned in this article because of course it is simply not appropriate in every case to hear all the evidence. That, as a general test contradicts the President’s Direction, where there is already an inherent conflict, as stated above.

Whilst one retains a hope that the length of the Court of Appeal’s flame was simply fuelled by their ire at the way the present case had been handled, it should be noted that there is a real importance in ensuring that victims of domestic violence are not given too short a shrift by the Court. There may be reasons for inconsistencies, linked to the damaged frame of mind that the victim occupies, and hasty conclusions in such cases will only entrench any feeling of abused helplessness that the victim may feel. One thing that was not made clear by the Court of Appeal is whether there should be any difference in the treatment between perpetrator and victim in terms of evidence: is a consequence of the Court of Appeal’s decision that every allegation should be heard and adjudicated upon?

On one view therefore the question has been answered; anticipate lengthy Re L hearings. The other view, which does not necessarily accept the premise of the necessity of all the evidence being heard, there remains a grey area, a line to be drawn between what is acceptable and what is not. Only time will tell which is right.

BYRON JAMES
Guildford Chambers