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AA v BB [2021] EWHC 1822 (Fam)

Judd J allows an appeal in a private law children’s case, dealing with the number of allegations to be investigated and the scope of the evidence to be relied on for a fact-finding, following Re H-N, Re T, Re H and Re B-B [2021] EWCA Civ 448


At the commencement of a fact-finding hearing, counsel for the respondent father raised a number of preliminary points. The point about the evidence was that the mother's statement included allegations going beyond the five permitted in the Scott Schedule, and so did the other statements. The order of 27th October had specified that the parties' statements should be limited to the evidence in respect of the allegations on the Scott Schedule and there was no direction (either requested or granted) for statements from any other witnesses. The Recorder was asked to exercise case management powers under FPR 22.1 and exclude the additional evidence.

The Recorder granted the application, for the most part, and directed that the mother file a replacement statement omitting specific material. He allowed a short statement from the nanny which was general in its allegation that the father came across as abusive and controlling. The grandmother's statement was said to be objectionable in parts but there was no direction for it to be redacted or redrawn and filed. Evidence from professionals as to what had been said to them and counsel's opinion to the father in an employment case.

The judge sympathised with the father's objections, given the terms of the direction and the filing of the evidence shortly before the fact finding. The original directions had been given before the decision in Re H-N  and neither appealed nor varied. However, the fact-finding had been adjourned for administrative reasons to September 2021 and so there would have been time for the father to prepare and respond to the new issues and evidence. Judd J decided that the evidence to be filed from the mother was relevant saying

"The allegations beyond those in the Scott Schedule were not either inadmissible or irrelevant; quite the opposite. The fact that the father was alleged to have hit the older child not once but several times was plainly an allegation of a pattern of behaviour which is highly relevant to an application for contact. So too were allegations he had forced the mother to have sex on several rather than one occasion, that as well as being physically violent to him the father treated the older child in a humiliating manner, and that he was a bully. These matters are also relevant to the father's case, in particular that the mother was the one who was violent, not him, and that she was alienating the children from him. These allegations (some of which had been set out in the mother's initial C1A) demonstrated that strict adherence to single incidents in the Scott Schedule would have to be reconsidered.

But she added that:

 "There will be occasions when a judge refuses to admit relevant evidence produced at the last minute before a hearing, when, for example it is not highly significant in relation to the other evidence and/or it cannot be adduced fairly without an adjournment of the trial which will itself cause harm and delay for the child."

Directions were then given for the mother to file a fresh narrative statement setting out the factual matters on which she relied including any allegations of a pattern of violent, abusive or controlling behaviour, to which the father was to reply including any allegations which he makes. A PTR was set to consider the allegations and what factual issues need to be resolved by the court. The need for evidence from treating doctors, the grandmother and nanny would be considered in this context.

The judge noted the President's comments in "The Road Ahead" (2020) about the limited time the courts could make available to determine factual dsiputes, saying that she therefore does not underestimate the challenges of case management in these cases.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII