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When One Parent Kills Another – how should the family court approach this?

Care proceedings where one parent has killed the other are particularly tragic for the children involved. This article considers some of the issues that arise in these cases and explores some of the case law when dealing with the death of one parent killed by the other.

Judith Pepper, barrister 4 Brick Court

Judith Pepper acted for the local authority in A local authority and C [2019] EWHC 1782 (Fam)


The family dynamics in these situations can be complex. When care proceedings have been commenced following the death of one parent at the hands of the other, the children can be caught in the midst of family and friends struggling to comprehend horrific events, as well as being surrounded by adults perpetuating friction that existed between their parents. In 1986, the child psychiatry team at the Royal Free Hospital, London, started to see children where one of their parents had killed the other (Black & Kaplan, 1988). The team subsequently moved to the Traumatic Stress Clinic. They noted that often when a father has killed a mother, extended family members step in to care for the children. Sometimes competition as well as hostility can be aroused between divided relatives, and the children can become caught up in a conflict similar to that between their parents which culminated in the death of their mother.1


General guidance

Mrs. Justice Hogg provided guidance in In the matter of A and B [2010] EWHC 3824.  In this case the children had been placed within the paternal family. The court 'accepted the expert advice that generally children should not be placed within the perpetrator's family' (paragraph 6). However the Court found that the best interests of the children lay with them continuing to live with their paternal grandparents. The court later made special guardianship orders in favour of both sets of grandparents.  Hogg J provided general guidance in these rare but difficult cases:

a. The threshold criteria will be met

b. The local authority should give immediate consideration to the issue of proceedings – it is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings

c. If proceedings are commenced, a children's guardian should be appointed at the earliest opportunity and following issue the case should be transferred to the High Court

d. If there are concurrent criminal proceedings, there should be liaison between the local authority solicitor and the CPS case manager

e. Professionals should seek guidance from an appropriate child and family psychiatrist or clinical psychologist.

Mrs. Justice Hogg stated that it would be a misreading of the otherwise helpful research (Hendricks/Black et al) to assume that there is a presumption that the family of the perpetrator should be discounted as carers for the children.


What role does the criminal law play in a fact-finding?

In the case of R (Children) [2018] EWCA Civ 198, the Court of Appeal considered the extent to which the family court should import elements of criminal law into a fact-finding determination within child care proceedings.

In this case the mother of two young children died in the kitchen of their family home following a single fatal knife wound to her neck inflicted by the children's father.  The father was acquitted of all criminal charges and Mrs. Justice Theis conducted a fact-finding hearing within care proceedings which concluded with a finding that the father had used 'unreasonable force and unlawfully killed the mother'.  The father appealed this finding. The two issues which were the main focus of the appeal were:

a. The extent to which the family court should import elements of criminal law into a fact-finding determination within child care proceedings

b. Whether the amount of time allowed for preparation by the father's legal team in this case was so constricted that the resulting trial was unfair within the terms of Article 6 of the European Convention on Human Rights.

Time was spent during the appeal addressing 'loss of control' and its meaning as a criminal defence. The Court of Appeal interrupted the oral hearing to ask the parties why it was that the family court concerned itself with detailed aspects of the criminal law during a fact-finding hearing conducted for the wholly different purpose of determining issues as to the future welfare of children (paragraph 30). As a result of this intervention, all parties accepted that the structure and substance of criminal law should not be applied in the family court (paragraph 61). As McFarlane LJ, as he then was, pointed out, a case concerning the welfare of children is wholly different from the prosecution by the State of an individual before a criminal court. The criminal court is concerned with the culpability of an individual and if guilty, punishment for a specific offence.  The family court determines facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of their welfare. The cases of Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567; [2005] Fam 123 and A Local Authority v S, W and T [2004] EWHC 1270 (Fam) were referred to as being cases that refer to the distinct roles of the criminal court and family court. 

A particular concern held by McFarlane LJ was that the family court, if utilising the criminal law when analysing evidence at a fact-finding hearing, could become swamped in legal technicality (paragraph 66).  This could lead the court to become side-tracked from the central task of simply deciding what has happened and what is the best future course for a child.

It was clear the local authority had been presenting its case on the killing in terms of the criminal law and that was the case the father understood he had to meet. 

In relation to the Article 6 argument, father's leading counsel detailed the scale of the work that had been required. The submission, in essence, made in respect of this was that despite their very best endeavours, the father's legal team were simply not able adequately to prepare for the fact-finding hearing.

McFarlane LJ stated that when an experienced advocate says that the difficulties the father's legal team had in meeting the case against him were so severe that there was not a grip on the evidence, this must be taken seriously.  He further noted that it was only in the local authority's opening note that the father read for the first time that a finding of 'deliberate' killing was being sought against him in the family court.  It was important that the father's advocate was now raising the issue of whether there was one or two movements with the knife – a factor whose significance the advocate had not appreciated at the time, given the speed of preparation.  Therefore, an important aspect of the father's case may not have been presented fairly to the court.

McFarlane LJ was persuaded that considering the two elements raised in the appeal together, and taking both elements into account, the father had not been afforded a sufficiently fair trial and the case had to be retried before a different tribunal.  McFarlane LJ then turned to the recently updated Practice Direction FPR 2010, PD12J 'Child Arrangements and Contact Orders: Domestic Abuse and Harm' relating to private law proceedings and specifically directions for a fact-finding hearing.

McFarlane LJ concluded by stating that it does not follow when one of the parents has died in the course of an altercation with the other that it will be necessary for the court to determine precisely how the death occurred and the role, if any, that the surviving parent played in it. It may be necessary to investigate the broad context of the relationships within the family and the behaviour of the parents over a period of time. It is for each individual case to be considered on its own facts. 


Should the family court make findings beyond the fact of a conviction for murder and what role does the conviction play in any fact-finding hearing?

The family courts have for some time explored allegations of controlling and coercive behaviour in fact-finding hearings, although many practitioners may at times have experienced the courts seeing allegations of these types as not being sufficiently serious to merit fact-finding hearings. It is hoped that the creation of a new criminal offence of controlling or coercive behaviour in an intimate of family relationship 2 has sent an important message in respect of this type of behaviour or these types of allegations.

In the case of A local authority and C [2019] EWHC 1782 (Fam) Mrs. Justice Lieven considered whether or not it was necessary to make further findings beyond the fact of the father's conviction for murder.  This was a case whereby the father was convicted of murdering the children's mother.  By the time of the hearing in the family court, the father indicated a wish to appeal the criminal conviction and disputed any intention to kill or cause serious harm.  The local authority sought findings beyond the fact of his conviction for murder, including those of controlling behaviour, such findings being relevant, it was contended, to whether the children would live with the maternal grandmother or paternal aunt, and also to the narrative the children would be given about what happened to their mother.

Mrs. Justice Lieven considered how to approach the father's conviction, the factual elements of his conviction, and thirdly the other factual matters that the local authority sought to rely upon. As set out in McCauley v Hope [1999] 1 WLR 1977, the Court of Appeal made it clear that a criminal conviction is not absolutely determinative that the offence took place and it is open to the defendant to argue in the civil case that the conviction was wrong.

Baker J, as he was then, considered this in Z (A Child) [2014] EWHC 2355,

'…where a person has been convicted of criminal offences arising from facts which are subsequently in issue in a children's case, the doctrine of res judicata applies so that the conviction is accepted as evidence of the underlying facts. In practice, save in exceptional circumstances, a court in family proceedings will proceed on the basis that a criminal conviction is correct'.

The father did not accept his conviction but was not positively seeking to argue that the contrary was proved within section 11(2) of the Civil Evidence Act 1968.  The father's defence in the family court was the same as the defence rejected by the jury in his criminal trial, with its higher standard of proof. Mrs. Justice Lieven accepted his conviction. 

Mrs. Justice Lieven then went on to consider the issue of estoppel: whether it has any place in Children Act proceedings; and to the degree it has, what matters are covered by it. The roots of estoppel are found in the doctrine of public policy, namely that a later court is bound by the earlier ruling. In the case of Re S, S & A (Care Proceedings: Issue Estoppel) [1995] 2 FLR 244, Wilson J, as he was then, extended the import of the doctrine of issue estoppel into children's cases where the parties in both proceedings were the same.  Hale J, as she then was, considered the issue of estoppel in Children Act proceedings in Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] 3 WLR 1. She considered the weight of Court of Appeal authority was against the existence of any strict rule of issue estoppel binding upon the parties in children's cases.  The court will have a discretion as to how the inquiry before it should be conducted.

Mrs. Justice Lieven therefore concluded her analysis of the case law as follows:

a. Having accepted the criminal conviction, she was bound by the principle of issue estoppel to find the father intended to kill or cause serious harm to the mother. Issue estoppel must apply to the fundamental elements of the criminal conviction. She therefore rejected any suggestion by the father he did not intend to harm the mother.

b. She concluded as a matter of judgment rather than estoppel that the jury must have rejected the father's version of what happened after the children went to sleep. Whilst the judge's sentencing remarks do not bind the court, she attached great weight to them.

c. To the degree that the local authority relied upon evidence presented to the jury by the prosecution about the father's controlling and jealous behaviour towards the mother, no issue estoppel arose and therefore she determined she would approach that issue based upon the evidence before the family court.

Mrs. Justice Lieven did consider this was a case where it was necessary to make findings of fact about events earlier in the relationship. She went on to make findings that the father had been abusive and controlling of the mother and agreed with the criminal judge that he was both jealous and possessive. She found that his evidence in the family court was noteworthy for his lack of acceptance of the findings of the criminal court and he saw himself as the victim. 

Given his lack of insight and the evidence he gave, the court could not see how he would be involved in creating any narrative that could be given to the children. The court made the section 34(4) order sought by the local authority.

In terms of expert evidence, Great Ormond Street Hospital was instructed, given their experience in working with children where one parent had killed the other. They were instructed within a particular remit, to undertake psychological assessment of the children and the support they would need, contact with their father and both sides of the family and how placement would impact upon them. Mrs. Justice Lieven was critical of their expressed preference within a professional meeting, given the significance of the issue of where the children should be placed, and observed that if they were to express a preference, they should have done so in a clearly written report with properly set out reasons.

Whilst both the maternal grandmother and paternal aunt had impressed the court, the court made a special guardianship order in favour of the maternal grandmother. The overarching rationale for this was the context in which the children would grow up. The paternal family were struggling to come to terms with the murder and were all at different stages in this journey.  The court felt it far more likely that the children would be able to retain memories and positive images of their mother if placed with her mother, in contrast to the likelihood that if placed with their paternal aunt, their mother's memory would gradually be squeezed out. 


Conclusion

There will be cases where even with a criminal conviction relating to the death of one parent by another, it will be necessary for the family court to determine other findings in respect of the relationship between the parents. Close cooperation with the CPS will be required in order that disclosure from criminal proceedings is obtained in a timely fashion. As was seen in the case of R, it is unrealistic to expect even experienced advocates to assimilate large amounts of information within short timescales, and for any subsequent fact-finding hearing to be conducted fairly. This is particularly acute when adverse findings are sought against the remaining parent.

Members of the wider family can often feel in competition with one another or actually be in competition with each other to care for the children and the manner in which experts are instructed to report on the complexities of placement and future needs of the children must be considered careful


1 Marital Conflict by Proxy After Father Kills Mother: The Family Therapist As an Expert Witness in Court, Tony Kaplan, Fam Proc 37: 479-494, 1998.
2 Section 76 of the Serious Crime Act 2015