Reported Case
Re H (A CHILD) (20 April 2021)
Date: 20/04/2021
We represent the Respondent Mother (hereinafter, M), in an application for a Child Arrangements Order applied by the Applicant Father (hereinafter, F).
F issued an application in 2017, and in November 2017, introductory contact took place at M’s place, no safeguarding concerns were raised at that stage. On 12 December 2017, a district judge made an order for supervised contact each alternate Saturday afternoon. There was no finding of fact hearing, nor has any complaint been made about the absence of one.
The F followed on by issuing enforcement proceedings. In relation to this application, the court in October 2018 confirmed the order made in December 2017. F also sought a Child Arrangements Order, and at a direction hearing on 27 November 2018, the parties agreed to contact continuing on the same basis and it was recorded that contact had been ‘working reasonably well’.
At a directions hearing on 27 March 2019, M was directed by HHJ Tolson to file a statement by 17 April 2019 detailing her allegations against F. When no statement had been filed by M by 31 July 2029, the judge directed that a statement be prepared by M at court. A statement was prepared with the assistance of her solicitor, and in her statement the allegations of rape, financial and emotional abuse were made. The judge listed the matter for a fact-finding hearing on 17 September 2019.
F continued to have contact with the child in the months leading up to the hearing on alternate Sunday supervised by M.
On 17 September 2019, at the fact finding hearing, the judge found the allegations of rape made by M not proven. The allegations of financial and emotional abuse were not investigated as the judge held ‘no implications for the future child arrangements in the context of the case’.
Following the fact finding hearing, parents agreed that F’s contact should progress to unsupervised contact every other Saturday from 10.00am to 5.00pm, and as from March 2020, an additional Sunday each month.
In relation to the judge’s failure to consider all the allegations and his failure to find that M had been raped by F on two occasions, M appealed out of time. M sought rehearing of the allegations of both the rape and controlling and coercive behaviour allegations on the basis that the judge’s judgment was flawed.
M’s application for permission to appeal out of time was allowed, and the appeal hearing was transferred to the Court of Appeal.
The Court of Appeal had to deal with four appeals on the issue of domestic abuse, and heard them together, the Judgment was handed down on 30 March 2021. Court of Appeal considered the issue of domestic abuse and PD12J. It stated that 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. 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.
It went to state:
The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
- Is directed against, or witnessed by, the child;
- Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;
- Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
- Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.
It stated that ‘the court will carefully consider the totality of PD12J, the proper approach to deciding if a fact-finding hearing is necessary is as follows:
- 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 (PJ12J.5);
- In deciding whether to have a finding of fact hearing the could 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;
- 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;
- 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’.
The client’s appeal was dismissed for the following reasons:
- M personally chose to supervise contact;
- There have been a number of investigations and reports conducted since that time;
- M herself does not seek to prevent contact taking place as ordered by HHJ Tolson but only, in some unspecified way, to ensure that contact is ‘safe’.
- Contact has been taking place since November 2017.
Client was represented by family director Vanket Appalakondiah with counsel Dr Charlotte Proudman, and Amanda Weston QC.