Family Law Newsletter #4628.04.21
Issue #46 of Spire Barristers' Family Law Newsletter: edited by Chloe Lee and Philippa Pudney; news and Case Reviews by Francesca Massarella. Francesca is due to begin pupillage at Spire Barristers in September 2021.
Articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters. Subscribe to receive Family Law Newsletter notifications or email us to give us any feedback.
We are pleased to announce that Andrea Ferguson joins Spire Barristers on 4th May 2021. Andrea originally practised from Chambers in London and will add further depth to our Family Law team in Chambers.
We are confident that she will be successful and enjoy life practising on the North Eastern Circuit. Please contact our clerks for further information.
Guidance / Updates
Separated families statistics April 2014 to March 2020
Mediation voucher scheme launched to help families resolve disputes outside of court
H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings)  EWCA Civ 448
-In the Court of Appeal (Civil Division): The President of the Family Division, Lady Justice King & Lord Justice Holroyde
-4 appeals involving allegations of domestic abuse by one parent against the other which addressed the way the Family Courts as a whole deal with such cases more generally.
At  the Court explained the law in this area as ‘where an allegation of domestic abuse is made, but not admitted and the court goes on to conduct a fact-finding hearing to determine whether the allegation is proved, it does so under ordinary civil law.’ The burden of proof is that the ‘occurrence of the event was more likely than not’, following the case of Re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563.
At  paragraph 3 of the Family Proceedings Rules 2010: Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm (PD12J) was cited. This rule dictates that domestic abuse includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those 16 and over who are or have been intimate partners or family members. Importantly, domestic abuse is no longer defined only as an action causing physical injury. At  the case of F v M  EWFC 4 was highlighted, in which it was held that greater prominence needed to be given to coercive and controlling behaviour in Family Court proceedings.
The Court set out the approach which must be taken by the court cases involving domestic abuse allegations:
1. The need for and scope of any fact-finding hearing must be determined following the guidance from PD12J. This must be done in order to provide a factual basis for any welfare report or accurate assessment of risk and must be done prior to any welfare-based orders or domestic abuse-related Activity directions being made. In determining whether it is necessary, the court should consider multiple factors, including the views of the parties and Cafcass, but also the need for procedural proportionality, embracing the President’s Guidance in the Road Ahead (June 2020). Therefore, the key factor in making this decision is whether or not a fact-finding hearing is necessary;
2. A Scott Schedule is a schedule or table which is used in court proceedings in the Family Court in order to clearly set out the allegations which are in dispute and to focus the hearing. However, the Court considered that it is not always possible to isolate individual incidents without understanding the context, and that there needs to be a focus on a wider context of whether there has been a pattern of abuse or coercive and controlling behaviour, as opposed to a list of specific factual incidents. There was also concern expressed that parties are encouraged to limit the allegations to be tried, meaning that the court has ‘robbed itself of a vantage point from which to view the quality of the alleged perpetrator’s behaviour as a whole’;
3. Cases must be heard with an increased focus on controlling and coercive behaviour. At  it was held by the Court that if coercive and/or controlling behaviour is asserted by one or both parents, ‘that assertion should be the primary issue for determination at the fact-finding hearing’; and
4. The Court should not give regard to criminal law concepts. At  the case of Re R (Children) (Care Proceedings: Fact-finding Hearing)  EWCA Civ 198 was cited, where it was held that it was fundamentally wrong for the Family Court to analyse factual evidence relating to the welfare of children based upon criminal law principles and concepts.
The approach to appeals against fact-findings comes principally from the case of Piglowska v Piglowski  2 FLR 763, where it was held that the appellate body can only interfere with a decision where it ‘exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong.’
The case of Re B-B concerned a mother’s appeal against a consent order setting out time to be spent between the father and the child. Both parents had asserted allegations of domestic abuse against each other. In the present Court’s judgment, the previous judge’s handling of the case was criticised as he commented that ‘if this goes on the child will be taken into care and adopted.’ It was therefore concluded that the consent order was made in circumstances where there had been procedural irregularity of such seriousness that the appeal must have been allowed.
Re H concerned an appeal against an order made for unsupervised contact between the father and child, which was made following a fact-finding hearing during which it was held that allegations of rape were ‘not proven and did not happen’ and allegations of financial and emotional abuse and harassment ‘have not been investigated.’ Presently, it was concluded that H benefitted from the unsupervised contact with her father and therefore to challenge the previous order would be wrong as the decisions made no longer have any direct relevance to welfare decisions to be made in relation to H. The appeal was dismissed.
Re T concerned an appeal by the mother against an order of extensive case management directions for a welfare hearing which was to take place following a fact-finding hearing. The mother submitted that the judge’s decision was wrong and unjust because she failed to appreciate the significance of the findings made and failed to properly find that the mother had been anally raped by the father. The present court concluded, at , that the judge ‘fell into error in that she omitted to look at the findings she had made as a whole’ because having determined that the allegations of anal rape were not made out, she did not appreciate the significance of the other matters which had been proved. Therefore, the appeal was allowed.
The case of Re H-N concerned an appeal by the mother against an order following a fact-finding hearing, within which the judge declined to make findings of domestic abuse against the father. The present Court held that the judge’s approach had been seriously flawed. In particular, the Court concluded at  that the judicial focus had ‘rested on the mother’s ability as a parent and her vulnerable mental health rather than on the allegations of domestic abuse.’ Accordingly, the appeal was allowed.
The Court concluded at  that ‘each of these appeals are [were] examples in differing ways of the importance of the modern judiciary having a proper understanding of the nature of domestic abuse and in particular of controlling and coercive behaviour and of its impact on both the victims and the children caught up in the atmosphere engendered in such a household.’
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/448.html
Re M (Special Guardianship Order: Leave to Apply to Discharge)  EWCA Civ 442
-In the Court of Appeal (Civil Division): Lord Justice Peter Jackson, Lord Justice Baker & Lady Justice Elisabeth Laing
-An appeal which concerned the test for granting leave to apply to discharge a special guardianship order (‘SGO’) and the construction of s.14D(5) of the Children Act 1989.
The proceedings concerned C, a boy aged 9. The father was never present, and the mother had serious mental health problems which resulted in C moving to live with his maternal grandmother and her partner (“the grandparents”) when he was aged 4 ½. The local authority concluded that the mother could meet C’s needs when she was well, but not when she was ill. A special guardianship order (“SGO”) was subsequently made in favour of the grandparents without opposition. Directions were given detailing contact arrangements between C and the mother.
In February 2020, the mother applied for leave to make an application to discharge the SGO. She made a further application for a child-arrangements order in July 2020 for C to spend time with her while the proceedings continued. The mother submitted that her mental health had greatly improved. However, the grandparents argued that it would not be in C’s interests to have a change of care. The local authority expressed concerns over the special guardianship order being revoked in that it could impact upon C’s stability.
The previous Judge concluded that even though there had been changes in the mother’s circumstances, it was not in C’s welfare interests to reopen proceedings. Further, due to multiple concerns about the mother’s ability to care for C and the risk of C’s life becoming unstable, the Judge considered that it would be very difficult for the mother’s application to succeed. Therefore, the application for leave to apply to discharge the SGO was dismissed, with the Judge citing her paramount consideration in this decision being C’s welfare. In relation to the contact application, the Judge also concluded that it was not in C’s welfare interests to have a contact order as it could cause more harm and tension between the adults and for C to become confused. Therefore, this application was dismissed.
At , the Court outlined that the legal status of special guardianship was created to offer ‘greater security for children than long-term fostering but without the absolute legal severance from the birth family that stems from adoption.’
Section 14D of the Children Act 1989 concerns the manner in which SGOs can be varied or discharged. A parent seeking to discharge an SGO requires leave of the court which can only be given if the court is satisfied that there has been a significant change in circumstances. In regards to what a ‘significant change of circumstances’ meant, the Court cited the case of Re G (Special Guardianship Order)  EWCA Civ 300, in which it was held that the two-stage test developed in the case of M v Warwickshire County Council  EWCA Civ 1084 applied, despite that test concerning applications for leave to revoke a placement order.
The first limb is that there must have been a significant change in circumstances. At  the Court considered that significant simply means ‘considerable, noteworthy or important’. The second limb is that there must be a real prospect of success. It was concluded that the degree of the change of circumstances is interlinked with this limb and the greater the prospects of success, the ‘more cogent the welfare arguments must be if leave is refused.’ However, the welfare of the child is not the paramount consideration of the second limb, as it is considered later, in deciding whether to allow the application.
In relation to the mother’s application for parental contact, the Court outlined that when an SGO is in effect, a parent does not need leave to apply for such an order. The case of Re S (Adoption Order or Special Guardianship Order)  EWCA Civ 54 was cited, where it was submitted by the foster mother seeking an adoption order, that one of her reasons for preferring adoption was because it gave protection from applications being made by the child’s mother. The present Court concluded at  that ‘there is nothing objectionable in principle about a contact application issued in respect of a child subject to an SGO.’
It was submitted by the mother, within 9 grounds of appeal, that the bar for special guardianship orders to be revoked was set too high as it made it a near impossible. In particular, she argued that the Judge erred in treating C’s welfare as paramount, the Judge had no basis for saying that if permission was given there would be another set of care proceedings and a risk of C being put in foster care. She further argued that the Judge set the bar far too high, and that the Judge was wrong to dismiss the application for contact without taking into account that contact had not taken place in accordance with the working agreement.
On behalf of the grandparents, it was submitted that the Judge was entitled to refuse leave and her decision was not one which the court should interfere with. Further, it was argued that the mother’s progress had not been substantial enough.
The Court concluded that the appeal should succeed for the following reasons:
1. The Judge’s test for change in circumstances was too high as she held that a guarantee was required that all the issues leading to the SGO had been resolved;
2. The Judge’s conclusion flowed directly from the test she had set;
3. The Judge was not in a position to reach the conclusion she did about the mother’s mental health, because a deeper assessment was required;
4. The judge did not make any real assessment of the mother’s prospects of success;
5. The comments regarding the risk of foster care were inappropriate;
6. The Judge favoured the grandparents’ view of how the working agreement of contact was working without having enough evidence to make this conclusion;
7. The Judge did not look at welfare correctly, as the SGO is not currently providing C with the necessary sense of security, stability and belonging required; and
8. There was no good reason for the summary dismissal of the mother’s application.
The appeal was accordingly allowed, and the previous orders set aside. The mother was granted leave to apply to discharge the SGO and restore her application for contact.
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/442.html