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Children: Private Law Update December 2020

Alex Verdan QC of 4PB analyses some recent important judgments in private children law.

Alex Verdan QC, of 4PB

This update will report on decisions dealing with the following issues:

• Challenging arbitration awards

• Orders prohibiting counsel from acting

• Unnecessary private law applications

• Relocation and the welfare analysis

• The fallibility of oral evidence

• Similar fact evidence

• Parental alienation: cult; transfer of primary care.

1. Challenging arbitration awards

Hayley v Hayley [2020] EWCA Civ 1369 was a financial remedy case where the husband sought to challenge an arbitration award by way of appeal, or, on the basis that the court should not convert the award into an order of the court, because it was unfair. The Court of Appeal considered a number of authorities to determine what test should be applied (in both financial remedy and children proceedings).

The Court of Appeal ultimately concluded: "the logical approach by which to determine whether the court should decline to make an order in the terms of the award, is by reference to the appeal procedure and approach found in the FPR 2010" [paragraph 73]. The court held that it would only substitute its own order for that of the arbitrator "if the judge decides that the arbitrator's award was wrong; not seriously or obviously wrong, or so wrong that it leaps off the page, but just wrong" [paragraph 74].

When presented with a refusal on the part of one party to agree to the conversion of an arbitral award into a consent order, the Court of Appeal suggested it would be logical for the court to 'triage' the case, with the reluctant party having to 'show cause' why such an order should not be made [paragraph 73].

The biggest implication is that parties now have only to persuade a court that an award is "just wrong" in order to appeal an arbitral award with which they disagree. This is a lower threshold than previously thought, and means the same test is applied when challenging both a court-based judgment and arbitral award. It is yet to become clear whether Haley will lead to a greater number of challenges to arbitral awards in the family law sphere (and beyond); the scope to do so certainly seems wider.

2. Orders prohibiting counsel from acting

In Ahmed v Iqbal (Order Preventing Counsel from Acting) [2020] EWHC 2666 (Fam)  MacDonald J was concerned with an order made prohibiting counsel from representing a client in the context of private law children proceedings.

The father's barrister had previously worked as a legal executive and advised the father in respect of an immigration application and at the same time communicated with the mother. After the parties separated the mother made a complaint against the legal executive on the basis of alleged misconduct. The father then instructed the barrister to represent him in contested children proceedings during which the mother made further allegations against her. The barrister in response complained to the police.

District Judge Carr made an order that the father's counsel should, in the exceptional circumstances, be prohibited from representing the father. MacDonald J, on dismissing the father's appeal, confirmed that such orders would only be made in exceptional circumstances:

"{T}he learned Judge was justified, on the evidence before him and having exercised appropriate caution having regard to the rarity of the order sought, in concluding that this was an example of the extremely rare cases in which it is appropriate for the court to direct that counsel should not continue to act for a party to proceedings because their continued participation would lead to a reasonable lay apprehension of unfairness, creating a real risk of counsel's continued participation resulting in the order made at trial being set aside on appeal."

3. Unnecessary private law applications

In Re B (a child) (Unnecessary Private Law Applications) [2020] EWFC B44  HHJ Wildblood QC was dealing with an appeal against a decision for a mother to produce five years' worth of medical records in private law proceedings, which was found to be disproportionately invasive. The judge took the opportunity to highlight the number of unnecessary court applications and the implications on the running of the court system. He estimated his court would have double the number of outstanding private law cases in January 2021 that it had in January 2020. He observed "not only is unnecessary litigation wasteful. It clogs up lists that are already over-filled – in terms of the over-riding objective, it amounts to an inappropriate use of limited court resources (see Rule 1.2(e) of The Family Procedure Rules 2010)". He highlights the possible consequences for litigants who do not take heed.

"[9] Therefore, the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation."

4. Relocation and the welfare analysis

In WS v KL [2020] EWHC 2548 (Fam) Knowles J was dealing with an appeal against an order allowing a mother to remove two young children permanently to Hong Kong, and found that the judge at first instance had failed to conduct a proper welfare analysis of the available options for the children or a proportionality assessment. The judge, whilst identifying various factors in the welfare checklist as to why the mother's proposal was better than the father's, had failed to undertake an holistic assessment of the options and failed to explicitly evaluate his findings and link them to the welfare checklist. This is a useful case for practitioners which emphasises the importance of undertaking a detailed and evaluated assessment of a child's welfare when dealing with applications of this sort.

5. The fallibility of oral evidence

In Re A (A Child) [2020] EWCA Civ 1230 the Court of Appeal was concerned with an appeal against findings made in private law proceedings that the father had poisoned the mother and her parents, killing the maternal grandfather. The Court of Appeal in allowing the appeal provided helpful guidance about being mindful of the fallibility of memory and the pressures of giving oral evidence.

"[33]….More recently, the courts have looked at the issue of what can, in broad terms, be identified as the fallibility of oral evidence. The issue of the extent to which a court should rely on the recollection of witnesses and the fallibility of human memory first arose in a commercial setting through observations made by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd and Another [2013] EWHC 3560 (Comm) ('Gestmin') at [15] – [22], and more recently in Blue v Ashley [2017] EWHC 1928 (Comm) at [68] – [69].

[34]. In the Gestmin case, at [22], Leggatt J expressed the view that the best approach for a judge to adopt in a commercial trial was to place little, if any, reliance on a witness's recollection of what was said in meetings and conversations; rather factual findings were to be based on inferences drawn from documentary evidence and known or probable facts. This was followed in Blue v Ashley, where Leggatt J at [70], having rehearsed his own earlier observations in Gestmin, approached evidence of a crucial conversation in a way that was '[m]indful of the weaknesses of evidence based on recollection'.

[35]. The Court of Appeal considered both of these cases in Kogan v Martin and Others [2019] EWCA Civ 1645 ('Kogan'). This was a case where the judge at first instance had wrongly regarded Leggatt J's statements in Gestmin and Blue v Ashley as an "admonition" against placing any reliance at all on the recollections of witnesses.

[36]. The Court of Appeal in Kogan emphasised the need for a balanced approach to the significance of oral evidence regardless of jurisdiction."

In reaching the decision that the appeal should be allowed, King LJ said the following at paragraph [50]:

"Fairness required a rigorous analysis of all the evidence relevant to the 'leaning over' issue. In my judgment, the judge inappropriately favoured an aspect of the oral evidence of the mother over a significant amount of contemporaneous and written evidence, without reference to that evidence, or sufficiently explaining why she had done this. This omission, in my view, inevitably serves to undermine the findings made against the father."

6. Similar fact evidence

This decision is potentially very useful to practitioners dealing with domestic violence cases. In R v P (Children: Similar Fact Evidence [2020] EWCA Civ 1088 the court was concerned with a mother's allegations of coercive and controlling behaviour against the father. The mother sought, in seeking to prove her allegation, to rely on previous allegedly coercive and controlling behaviour towards another third party as similar fact evidence. The mother appealed the court's decision to refuse to admit this evidence. Jackson LJ on hearing the appeal referred to the decision in O'Brien v Chief Constable of South Wales Police [2005] UKHL 26 when the House of Lords considered the issue of similar fact evidence in civil cases, where it is contended that an individual's behaviour in other circumstances makes it more likely that he will have behaved in the manner now alleged because it is evidence of a propensity to behave in that way [see paragraphs 3 – 6]:

"3.  Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in Director of Public Prosecutions v Kilbourne [1973] AC 729, 756, "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof ….. relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable".

4.  That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. … To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense probative. If so, the evidence is legally admissible. That is the first stage of the enquiry.

5.  The second stage of the enquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesis is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.

6.  While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided. This… is often a potent argument, particularly where trial is by jury. Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections. … In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties."

At paragraph [24] of the judgment Jackson LJ confirmed that this analysis also applies to family cases:

"There are two questions that the judge must address in a case where there is a dispute about the admission of evidence of this kind.  Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable?  If so, it will be admissible.  Secondly, is it in the interests of justice for the evidence to be admitted?  This calls for a balancing of factors of the kind that Lord Bingham identifies at paragraphs 5 and 6 of O'Brien."

Jackson LJ then goes on at paragraph [25] to deal with the extent to which the facts relating to the other occasions have to be proved for propensity to be established, and refers to paragraph [39] in the case of R v Mitchell [2016] UKSC 55.

7. Parental alienation: cult; transfer of primary care

In Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam) the court ordered a transfer of residence of a 9 year old to his father's care in circumstances where despite repeated warning the mother had failed to disengage from the cult of Universal Medicine. In reaching the view that a transfer of living arrangements was in the child's best interests, Williams J set out the relevant considerations on making such orders:

"[59]. The welfare of the child is the paramount consideration. I bear in mind the welfare checklist, the presumption of parental involvement contained in section 1(2A), that an order which transfers the primary care of a child and restricts their relationship, and thus which significantly interferes with the relationship between the child and a parent, should only be made where it is necessary and proportionate. Whilst a significant order, as the Court of Appeal emphasised, a transfer of primary care is not limited to cases of last resort. Such an order will be appropriate where assessment of the paramount welfare of the child justifies such an order. In a case such as this the evaluation of paramount welfare and the necessity or proportionality of the appropriate order to give effect to that evaluation of paramount welfare are inextricably linked; and indeed, in a case such as this, the conclusions as to paramount welfare make the resulting order necessary and proportionate.

[60]. Although the parameters of this hearing were set on a fairly narrow basis by the Court of Appeal, inevitably in conducting the ultimate evaluation of paramount welfare I have sought to survey the totality of the welfare landscape and have considered all of the circumstances and the welfare checklist as part of that survey. Ultimately the evaluation of welfare on the evidence as it stands before me was my function."