Case law

Family law cases and Appeal matters

Re H (Parental Alienation) [2019] EWHC 2723 (Fam)

Keehan J orders a change of residence as the only realistic option to meet the child's welfare best interests in a case of parental alienation. Reliance upon the expert evidence of Dr Braier; inadequacies in the reports of the SW and NYAS caseworker.
BackgroundH, aged 12, lived with his mother. The parties separated in 2007 and there had been almost continuous court proceedings in respect of H. This was the sixth set of private law proceedings. Mother had raised allegations of domestic abuse against the father on several occasions, all of which had been dismissed.
H had enjoyed regular good quality contact with his father and paternal family until March 2018. There had been no direct contact since then. Messages sent by H to his father in May indicated that the mother had told H about, or allowed him to read, an intemperate email sent by the father to the mother.
In summarising the law, Keehan J highlights the decision of the President in Re L (A Child) [2019] EWHC 867 (Fam).
Evidence
Mr Justice Keehan sets out the evidence of Dr Braier, who assessed both parents and H, at length. Dr Braier observed that H's current expressed wishes may reflect mother's difficulty in providing H with an accurate mirror of his own feelings as a child. H's presentation suggested he is triangulated within his parents' conflictual relationship and was prioritising his mother's needs over his own. His responses to the Child Attachment Interview, perception of parent's scale and Bene Anthony Family Relations test were all consistent with those typically seen in alienated children (exclusively negative messages to his father and paternal family and almost exclusively positive items towards his mother). H's lack of ambivalence made his presentation more likely to be alienation than estrangement resulting from his father's behaviour. His response was extreme and excessive, a presentation not seen in children whose parents have been neglectful or abusive. While H may on the surface appear to be fine emotionally, he is not.
Mother's views were entrenched. Therapeutic intervention aimed at a restoring H's relationship with his father whilst in the care of his mother was ill-advised. A change of residence may cause H transient distress. The court records Dr Braier's view that cases like these require practitioners with experience and specialised training in the area of implacable hostility and alienation. For the transition, she recommended residential therapy with H and his father in the paternal home over at least 4 days and 4 nights, with a 12 week follow up of therapy sessions.
A s.37 report was undertaken by a social worker with no previous experience of cases of parental alienation. The report was "woefully inadequate", being critical of the father but not of the mother and paying scant regard to Dr Braier's recommendations. The court took no account of the report or of the evidence of its author.
The court was critical of the NYAS caseworker. Her report contained serious omissions and deficits. Of note, she made only passing reference to Dr Braier's report, considered the negative issues about the father but failed to give consideration to the adverse role of the mother, and accepted H's expressed wishes and feelings at face value. She had spoken only once to each parent briefly on the phone. In her report, the NYAS caseworker made an unequivocal recommendation that H should live with his mother and have no contact whatsoever with his father. In her oral evidence, she completed a volte face, making no recommendation about with whom H should live or the contact he should have.
The court had the benefit of a transition plan prepared by an ISW.
The court formed a positive view of the father. Father readily accepted he had made errors in the past and had drawn H into the conflict, he had reflected on his past behaviours, was genuine in expressing remorse and was committed to undertake the work and therapy advised by Dr Braier.
Conclusions
Keehan J accepted the opinion of Dr Braier without hesitation. He records that parental alienation is very harmful to a child, skewing the ability to form any and all sorts of relationships. He set out the factors for/against a move and did not underestimate the trauma of a move for H but concluded that any trauma or stress would be of short duration. Mother had alienated H from his father;The absence of father from H's life has and will cause H emotional and social harm;The only means by which H can enjoy a relationship with both parents is to transfer residence to the father.Mother lied repeatedly in her evidence. She was wholly passive aggressive in giving evidence about supporting co-parenting and did not resist any opportunity to castigate and blame the father.
He found the following:
The court made a child arrangements order for H to live with his father and spend time with his mother, subject to a three month embargo on direct contact while H settles.

Re JS [2012] EWHC 1370 (Fam)

Fact finding hearing 

in care proceedings involving non-accidental intra-cranial injuries to a 15 week old child in which Baker J considered medical evidence from six leading experts.

Over fifteen days, Baker J heard a fact-finding hearing during care proceedings brought by the local authority. The local authority sought findings that the intracranial injuries suffered by the child were inflicted by his parents when he was fifteen weeks old. The police had still to reach a conclusion to their investigation at the time of judgment in the fact-finding hearing.
The issues to be determined before Baker J were whether the injuries sustained by the child were inflicted non-accidentally, if that were the case then who was responsible for inflicting them and was there more than one incident that gave rise to the injuries. Evidence included that of six leading experts in their fields in relation to the type of injury the child had suffered as well as evidence from the parents and family members and substantial written evidence including transcripts of police interviews with the parents.
The judgment is notable for how it succinctly summarises the law in relation to the evidence and the approach of the court. The judgment also helpfully summarises, in a straightforward fashion, the court's approach to medical evidence in this type of case.
Of particular note is Baker J's general observations on subdural haematomas and retinal haemorrhages and the review by Baker J of the medical opinion.
Baker J concluded that the father was responsible for the injuries and found that the father had perpetrated the injuries by shaking the child. Baker J went on to find that the mother had failed to protect the child from the father and had therefore contributed to the harm suffered by the child.

RE H-N AND OTHERS (CHILDREN) (DOMESTIC ABUSE: FINDINGS OF FACT HEARINGS) [2021] EWCA CIV 448

AA v BB [2021] EWHC 1822 (Fam), which is one of the first reported cases to consider the Court of Appeal's decision in Re H-N.  

Reader is directed to the following link for the full judgment in this case: https://www.judiciary.uk/wp-content/uploads/2021/03/H-N-and-Others-children-judgment-1.pdf

COERCIVE AND/OR CONTROLLING BEHAVIOUR

In the case of F v M [2021] EWFC 4, Mr Justice Hayden handed down a judgment which, the Court opined, 'should be essential reading for the Family judiciary'. The Court added that, in addition to the case being an illustration of what is meant by coercive and controlling behaviour (albeit towards the higher end of such behaviour), Hayden J provided a valuable exercise '... in highlighting at paragraph 60 the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. That guidance is relevant to the evaluation of evidence in the Family Court.' [30]

The following is a link to the full judgment in F v M: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/4.html.

The following is a link to an article on F v M written my colleague, Ron Edginton: https://becket-chambers.co.uk/2021/03/03/coercive-and-controlling-behaviours-how-are-they-to-be-dealt-with-in-fact-finding-hearings-after-the-recent-case-of-f-v-m/.

The Court stated that '[t]he circumstances encompassed by the definition of 'domestic abuse' in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings ... It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim.' [31]

'PATTERNS' OF BEHAVIOUR & THE APPROACH TO BE TAKEN BY THE COURT

Having considered the damage coercive and/or controlling behaviour can cause to children, the Court moved to consider the approach to be taken by courts where a 'pattern' of 'coercive' and/or 'controlling' behaviour has been raised. Importantly the Court clarified that, while its judgment may be focused on controlling and coercive behaviour, the definition of domestic abuse refers to patterns of behaviour which includes all forms of abuse including physical and sexual violence and, as such, the Court's observations apply equally to all forms of abuse.

The Court determined that there were several important issues which arise re the proper approach of the court to such cases, namely:

  1. Whether there should be a fact-finding hearing;
  2. The challenges presented by Scott Schedules as a means of pleading a case;
  3. If a fact-finding hearing is necessary and proportionate, how should an allegation of domestic abuse be approached?;
  4. The relevance of criminal law concepts.
  1. The need for and the scope of any fact-finding hearing

The Court highlighted that '[i]t is important for the court to have regard to the need for procedural proportionality at all times, both before and during any fact-finding process. A key word in PD12J paragraphs 16 and 17 is 'necessary'. It is a word which also sits at the core of the President's Guidance 'The Road Ahead' (June 2020) ... in particular: '43. If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.' [36]

The Court stated that: [37] '[t]he court will carefully consider the totality of PD12J, but to summarise, the proper approach to deciding if a fact-finding hearing is necessary is, we suggest, as follows:

i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).

ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.

iii) Careful consideration must be given to PD12J.17 as to whether it is 'necessary' to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.

iv) Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is 'necessary and proportionate'. The court and the parties should have in mind as part of its analysis both the overriding objective and the President's Guidance as set out in 'The Road Ahead'.'

  1. Scott Schedules

The Court heard submissions from the parties as to the usefulness of Scott Schedules and re courts focusing on a list of specific incidents each tied by time and date (rather than on whether there had been a pattern of behaviour). The parties had also been required to limit the number of allegations to be tried.

The Court concluded that:

'serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be. This is an important point. Everyone agrees.' [46]

'Quite how a move away from the use of Scott Schedules is to be achieved, and what form any replacement 'pleading' might take, does, however, raise difficult questions ... A number of suggestions were made by the parties in submissions including; a 'threshold' type document, similar to that used in public law proceedings, formal pleadings by way of particulars of claim as seen in civil proceedings and a narrative statement in prescribed form'. [48]

'The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties ... It will be for others ... to develop these suggestions into new guidance or rule changes.' [49]

  1. Approach to Controlling and Coercive Behaviour

The Court noted that, until such time as there is new guidance or a change to the rules, cases of domestic abuse will continue to come before the courts and with an increased focus on controlling and coercive behaviour.

The Court determined that, where a party properly raises the issue of whether there has been a pattern of coercive and/or controlling behaviour, that '[i]t is the responsibility of the individual judge or bench of magistrates in each case to set a proportionate timetable and to maintain control of the court process where it has been determined that a fact-finding hearing is necessary. It is, however, our expectation that, in cases where an alleged pattern of coercive and/or controlling behaviour falls for determination, and the court has made that issue its primary focus, the need to determine a range of subsidiary date-specific factual allegations will cease to be 'necessary' (unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour).' [56]

To assist, the Court offered the following pointers [58]:

'a) PD12J ... is focussed upon 'domestic violence and harm' in the context of 'child arrangements and contact orders'; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;

b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is 'necessary' in order to:

i) Provide a factual basis for any welfare report or other assessment;

ii) Provide a basis for an accurate assessment of risk;

iii) Consider any final welfare-based order(s) in relation to child arrangements; or

iv) Consider the need for a domestic abuse-related activity.

c) Where a fact-finding hearing is 'necessary', only those allegations which are 'necessary' to support the above processes should be listed for determination;

d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.'

The Court stated that '[w]here one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of PD12J, paragraph 16, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).' [59]

  1. The relevance of criminal law concepts

The Court confirmed that the 'authoritative statement of the law in this regard' is found in the Court of Appeal judgments of McFarlane and Hickinbottom LJJ in Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198; [2018] 1 WLR 1821, where the court held that, as a matter of principle, it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.

AA v BB [2021] EWHC 1822 (Fam)

On 2 July 2021 The Hon Mrs Justice Judd handed down judgment in the appeal of an order made in private law Children Act 1989 proceedings. This is one of the first reported cases to consider the Court of Appeal's decision in Re H-N.

The appeal was against a case management decision to exclude evidence from a fact-finding hearing in which there were cross-allegations of domestic abuse. Each party was directed to file a schedule limited to 5 allegations.

The start of the fact-finding hearing was delayed and the matter called on at 2pm. Father's counsel raised preliminary points including that mother's statement went beyond 5 allegations, that it added more detail and examples of the father's alleged abuse towards her and the children, and that it exhibited a number of documents (including letters from professionals treating the oldest child and which set out allegations the child had made against the father). The mother also sought to rely on statements from the maternal grandmother and the nanny.

Due to time constraints, the fact-finding hearing was adjourned and the judge limited himself to case managements issues. The judge, in large part, acceded to father's application and directed that mother should file a new statement. The judge allowed the grandmother's statement (but stated the contents went far beyond the allegations in the Scott Schedule) and the nanny's statement, but excluded documents include those from the professionals treating the oldest child.

In her appeal, the mother relied on the dicta of the Court of Appeal in Re H-N and of Hayden J in F v M regarding the limitations of Scott Schedules and the fact that the court focused on particular allegations rather than looking at patterns of overall behaviour.

In allowing the appeal, Judd J stated that:

'The allegations beyond those in the Scott Schedule were not either inadmissible or irrelevant; quite the opposite'. [37].

'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'. [38]

'In this case, however, not only were the allegations highly significant but the hearing had to be adjourned in any event. The fact finding hearing was relisted ... meaning there was time for the nature of scope of this to be considered at a further case management hearing ...' [39]

Judd J made directions and the matter was listed for a pre-trial review.

The following is the link to the full judgment in this case: https://www.bailii.org/ew/cases/EWHC/Fam/2021/1822.html


    V (A Child) [2015] EWCA Civ 274

    Appeal by a father following a fact-finding hearing in private law children proceedings.

    This was an appeal by a father following a fact-finding hearing in private law children proceedings. The substance of the appeal was a complaint that, in giving his ex tempore judgment, the judge had simply recited the evidence and announced his conclusions with an absence of reasoning. When the papers first came before Black LJ, she invited the appellant to return the matter to HHJ Wulwik in order to ask him to provide his reasons. This having been done, and the reasons provided amounting to less than a side of A4, Black LJ was satisfied that the reasons were still sufficiently lacking that permission to appeal ought to be granted.  



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