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K v K [2022] EWCA Civ 468

The Court of Appeal (Vos MR, McFarlane P, King LJ) allowed an appeal against the outcome of a fact-finding hearing in private law proceedings and gave general guidance about the approach to such hearings in light of Re H-N [2021] EWCA Civ 448.

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Background

The proceedings concerned a girl, now 12, and twin boys of 9. After the parents' separation in August 2017 the father (F) had regular unsupervised contact until logistical issues led to arguments between the parents. In early 2018 the eldest child refused to see F but the twins continued to do so, staying overnight on alternate weekends. There were disagreements over the arrangements leading to WhatsApp exchanges in June 2019 in which F expressed his frustration and threatened to start proceedings. Contact was thereafter restricted by mother (M) to daytime contact. F issued an application for a child arrangements order in December 2019, claiming the urgency of Christmas arrangements as a reason for bypassing a MIAM. M filed a C1A making some minor allegations against F but not objecting to unsupervised contact.

The Cafcass safeguarding letter (SGL) which referred to allegations made by M, including rape and coercive control, said a fact-finding hearing (FFH) should be considered.

At the FHDRA the judge read the SGL as recommending a FFH and decided there should be one. He ordered that F should have supported daytime contact only in the interim. That contact only happened for a few months before the pandemic intervened and the children have not seen F since April 2020.

Findings were made at the FFH; at the final hearing, following a Cafcass report, a final order was made for monthly indirect contact only.

The appeal

This was a second appeal, a CJ having upheld the DJ's findings at the first appeal.

The DJ had fallen into error by not taking a step back and considering the evidence as a whole and by placing undue weight on particular pieces of evidence; the finding that F had raped M was unsafe.

In respect of other allegations the order that recorded the outcome of the FOF contains significant inaccuracies, for example stating that the DJ had found father to have physically abused the children when he had not.

The DJ ought to have considered all the allegations in the context of whether F had displayed coercive control affecting the children after the marriage had ended; the appeal judges were surprised that the judge found controlling behaviour after the split mainly based on the June 2019 WhatsApp messages which were all sent on one day.

General guidance

The following key principles were set out:

• MIAMs should not be bypassed unless there is a genuine reason. The court should, in accordance with FPR part 3 consider at every stage whether non-court dispute resolution is appropriate and should scrutinise the validity of any MIAM exemption claimed. In this case the exemption was not properly claimed, which should have been picked up at or before the FHDRA.

• FHDRAs should be used as intended; their "essential purpose is as an opportunity for judicially led dispute resolution." In this case it is possible that matters could have been resolved consensually at the FHDRA, given that M had said in her C1A that she did not object to unsupervised contact.

• The judge considering whether to list a FFH must first identify the child welfare issues to which such fact-finding is relevant, understand the nature of the allegations and consider whether the facts alleged are relevant to the identified welfare issues. Careful consideration must be given to whether a FFH is necessary and proportionate. In this case it was premature to direct one at the FHDRA without a full understanding of the allegations being pursued.

Outcome

As the most serious of the findings are unsafe the case was remitted to a CJ to consider, in the light of the principles set out in Re H-N and this judgment, whether a fresh FFH is justified. The parties were urged to consider whether compromise is possible in the interests of the children.

The Cafcass s7 report

The CA expressed concern at the way the s7 reporter summarised the DJ's findings, noting significant inaccuracies and underlining the "real danger in reducing bespoke, detailed and subtle ?ndings made by a judge to one or two word headline labels, in place of the original detail. The case analysis uses the labels of rape, bullying, manipulation and physical abuse, each of which emits a neon light in an erroneous and unjusti?ed manner."

Case summary by Gill Honeyman , Barrister, Coram Chambers

For full case, please see BAILII