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B v P [2022] EWFC B18

Successful appeal against the outcome of a fact-finding hearing held before a district judge in private law proceedings.

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Background

The proceedings concerned two children, A aged 9 and B aged 7. In December 2019 the father made an application for enforcement of a child arrangements order. The mother applied for variation of that order, making allegations of domestic abuse. The mother was represented. The father was not.

At the fully remote fact-finding hearing the judge heard evidence from the parents, the mother's brother and a social worker. There was no ground rules hearing, and from the transcript of the hearing, no consideration of special measures. As far as HHJ Levey could tell, the judge was not referred to the need for a ground rules hearing, Part 3A of the FPR, Practice Directions 3AA or 12J, nor was she referred to the definition of domestic abuse or reminded of the decision in Re H-N [2021] EWCA Civ 448.

The judge found most of the mother's allegations not proved, while most of the father's allegations against the mother on the enforcement application were proved. The mother appealed.

Appeal

HHJ Levey allowed all eight of the mother's grounds of appeal and thus held that the findings of the judge could not stand. He found the fact-finding hearing to have erred in the following respects:

1) the judge did not follow the approach endorsed in Re H-N of stepping back from the precise allegations and considering the behaviour as a whole or whether there was a pattern of coercive and controlling behaviour. HHJ Levey considered that had the judge stood back to consider the evidence as a whole, rather than making separate findings on each example given, she would surely have found the father's behaviour to have formed such a pattern. Having failed to do so, the result was that the judge 'minimised' the father's behaviour and fell into error [§56 and 66].

2) the judge was found to have made 'significant omissions' in her judgment in not referencing Part 3A FPR, Practice Directions 3AA or 12J, or the definition of domestic abuse in a case where such issues were critical [47]. The absence of a PD3AA ground rules hearing to consider whether any special measures needed to be in place led to unsatisfactory aspects to the fact-finding hearing, such as the parties being able to observe each other throughout and the father at times addressing the mother directly [45]. HHJ Levey considered such factors rendered the fact-finding decision unsafe as they raised significant concerns as to whether the mother could have participated effectively in the hearing [50].  At [44] it was made plain that the duty to consider whether special measures are necessary and if so, what they should be, lies with the court.

3) it was a procedural irregularity for the judge to have made findings that the mother had breached the child arrangements order without putting those allegations to her in cross-examination. It was not fair process to make findings on allegations without allowing the mother the opportunity to respond to them [73].

Outcome

None of the district judge's findings could stand, and the application was relisted to be heard before a circuit judge.


Case summary by Daniel Taylor, Pupil, Coram Chambers

For full case, please see BAILII