Family Law Newsletter #5028.07.21
Issue #50 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.
New report from Domestic Abuse Commissioner finds that the family and criminal court system retraumatises victimsRead More
‘A de-facto problem’ – a discussion surrounding cohabiting couples’ financial applications upon separationRead More
Guidance / Updates
Ofsted report on children’s social care in England 2021
Forced Marriage Unit statistics 2020
Updated government guidance as to the use of Courts during the pandemic
AA v BB  EWHC 1822 (Fam)
In the High Court (Family Division): The Honourable Mrs Justice Judd DBE
-An appeal against a case management decision to exclude evidence from a fact-finding hearing where there were allegations of domestic abuse
This principal proceedings with which the Court was concerned related to the parties’ two children, aged 12 and 3. The parents, who were married, first separated in 2019 and in January 2020 each issued applications for child arrangement orders and specific issue orders. They reconciled briefly in April 2020 but by August 2020 the marriage had broken down again and proceedings were reissued. Both parties made allegations of abuse against the other and an order was subsequently made for both parties to file a schedule limited to 5 allegations, and a schedule in response to that of the other party.
At the First Hearing Dispute Resolution Appointment in October 2020, further directions were given for a fact-finding hearing and there was an order that the parties should each file and serve a witness statement. Due to a loss of a day to court listing and the preliminary application, the fact-find hearing could not go ahead and had to be adjourned for several months so the Recorder limited himself to case management issues and determined the father’s application at the hearing in February 2021.
For the five allegations she was permitted to make, the mother sought to litigate the following:
1) The father had negligently allowed the younger child to fall from a high table at the age of six months and had resisted going to the Accident and Emergency department;
2) The father had forced the mother to have sex with him and in doing so passed on an STI;
3) The father had slapped the oldest child, thrown a parcel at him and then threatened to kill him;
4) The father self-harmed and called the police saying that the mother was responsible; and
5) On an occasion in 2020, the father had shouted at the older child, undermined and mocked him, and then twisted his arm to remove a remote control.
The mother’s statement added more detail and examples of the abuse she alleged the father had inflicted on her and the children. For example, she said that the forced sex as alleged in the schedule was not the only occasion it had happened and that she had witnessed several serious incidents when the older child had been hit by the father. The mother also included a number of documents attached to her statement including evidence that the father had bullied people at work, and several letters from professionals treating the oldest boy setting out the allegations he had made against his father and the mental health difficulties he suffered as a result.
The father filed a Scott Schedule against the mother which included allegations of violence and abuse and a claim that she had tried to alienate the older child from him.
The Recorder in the previous hearing considered those elements of the mother’s statement that the father had highlighted as being irrelevant, inadmissible or otherwise objectionable and decided that significant sections of the mother’s statement should be excluded. These sections included, for example:
1) A statement by the mother that the father’s violent and abusive behaviour towards the children had worsened in 2019;
2) The mother’s statement referring to the ‘constant’ abuse of the older child;
3) The mother’s contention that the father frequently mocked the older child;
4) The views of the psychologist about the older child; and
5) Allegations that the father had had affairs and slept with prostitutes.
The mother appealed on 4 grounds :
1) The Recorder was wrong to exclude the matters in the mother’s sworn statement on the basis that they were irrelevant and inadmissible;
2) The Recorder was wrong to exclude the professional evidence which was relevant to the child’s allegations and the impact of the alleged abuse;
3) The Recorder was wrong to exclude similar fact evidence about the father’s behaviour at work; and
4) The Recorder’s conduct of the hearing resulted in procedural unfairness.
On behalf of the father, it was submitted that the mother had been represented since October 2020 but at no stage had sought to appeal the case management orders requiring the parties to limit themselves to 5 allegations each and so the narrative statements should not have strayed outside of this. The statements produced for the fact-finding hearing did not comply with those directions and this put the father in a difficult position because the mother was seeking to expand the allegations at the last minute. In any event, it was argued that the Recorder had a wide discretion and had exercised it appropriately.
At , the Court referred to the case of Re TG (Care Proceedings: Case Management: Expert Evidence)  EWCA Civ 5, to demonstrate that an appeal court will only interfere with case management decisions in very limited circumstances. Furthermore, the case of Re H-N, Re T, Re H and Re B-B  EWCA Civ 448 was cited, where it was held that the value of Scott Schedules had declined and they were now a potential barrier to fairness and good process.
At , the Court concluded that ‘the allegations beyond those in the Scott schedule were not either in admissible or irrelevant; quite the opposite.’ It was held that ‘the fact that the father was alleged to have hit the older child not once, but several times was plainly an allegation of a pattern of behaviour which is highly relevant to an application for contact.’
The appeal was therefore allowed and the Recorder’s order, so far as it related to the filing of evidence, was set aside. An order was made that the mother should file a narrative statement setting out her allegations against the father and the father should file a narrative statement in response including any allegations against the mother. Those statements were then to be considered by the trial judge at the pre-trial review in July alongside the mother’s application to adduce evidence from her mother, the nanny, and doctors. It was also directed that the mother’s application to adduce factual evidence from treating professionals should be determined at the pre-trial review.
The Honourable Mrs Justice Judd DBE concluded by stating ‘I do not underestimate the difficulty of case management in proceedings such as this, and the significant pressure on the courts in finding sufficient time to deal with these cases proportionately and fairly.’
Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2021/1822.html
J (A Child) (Resolutions Model)  EWFC 58
In the Family Court: HHJ Baker
-A case concerning an approach taken that may be considered out of the ordinary or unusual where using the Resolutions Model led to reunification of a mother and child.
Jane was born in May 2020 and the Local Authority applied for a care order the day after she was born because her older sister, Amber, born in 2017, had been the subject of a care case which resulted in her being placed with a relative. The father of Jane was not the father of Amber but was living with and looking after her when problems occurred.
A number of findings were made concerning Amber following evidence, including bruising and nail injuries which were concluded to have been inflicted injuries. Both parents denied being responsible for these injuries.
The Threshold Criteria was deemed made out for Jane because, although she had not suffered any harm the hands of either parent, what had happened to Amber and things about her parents’ lifestyle and attitude at the time she was born made it likely that she would suffer harm in the future if looked after by either of them. Neither the mother nor father argued against the decision of the Local Authority and the Children’s Guardian when both agreed that Jane needed to be placed in foster care with her aunt.
A decision was made that the Resolutions Model would be appropriate for the mother and Jane. This was defined at  as being a model where ‘the fact that the parent denies causing an injury need not rule out the possibility of that parent resuming care of all involvement in the care of that child. It may be possible to use the entire family and support network to build a protective regime around the child to ensure the child’s future safety.’
It was concluded that a resolution model might have been appropriate in Jane’s circumstances because the parents had separated, there had been some movement on the mother’s part in relation to Amber’s injuries, the mother appeared to have a relatively large and supportive family, and although the assessment of the mother was negative because of what happened to Amber it did highlight a number of positives. Furthermore, in the absence of an approach that worked with and accommodated the fact that the parents denied causing the injuries to Amber, it was highly likely that the outcome of the case was inevitable as any assessment followed the standard risk assessment approach would reach the same conclusion as the first assessment.
A social worker was appointed to undertake a risk assessment to see if the Resolution Model could be employed with either parent. It was concluded that the father had several unaddressed needs which would compromise with ability to safely care for a small child. However, it was decided that it was viable to work with the maternal family and the mother as part of a Resolutions Programme towards the reunification of Jane with the mother.
A psychological assessment was undertaken in January 2021 which determined that the mother had made significant positive changes to her lifestyle and well-being and there were no psychological issues that would stop her from being a good parent. At a hearing in March 2021, a rehabilitation plan was agreed which saw Jane move to her mother’s care under the supervision of family. The plan involved a long period where the mother and Jane were supervised together for 24 hours a day, 7 days a week. This gradually reduced through planned and unplanned observations and very regular family meetings in cooperation with local authority staff.
The father had supervised contact visits with Jane and the Court noted that he had made significant improvements but that it would be unlikely that this contact would become unsupervised at any point in the near future. It was also noted that the case remained high risk because neither parent had admitted what had actually happened to Amber.
At , HHJ Baker made several observations about the Resolutions Model:
1. There were several factors in the case that persuaded him that it was appropriate to give permission for a risk assessment to determine whether the resolution model was appropriate. This included: evidence of the existence of a support network and family; the fact that the possibility had been identified early on; and, the evidence of sufficient positives with respect to the mother such that the improvement of risk could be targeted;
2. The case had taken a long time and face-to-face contact between Jane and her parents was suspended for a significant amount of time due to the pandemic. However, even without the pandemic, HHJ Baker concluded it was difficult to imagine a case involving a Resolutions approach that could be completed within 26 weeks; and
3. After the risk assessment was undertaken, the work undertaken by the social worker was commissioned by the local authority alone and the indirect consequences in terms of time and commitment were also significant. Had the Local Authority not agreed to provide for this, the outcome could have been very different as the Legal Aid Agency does not provide for ‘therapeutic’ work.
A care order was subsequently made in respect of Jane as the case remained a high-risk one but with the benefit of the Resolutions plan in place going forward. The Court considered there a clear need for the Local Authority to share parental responsibility for Jane as they needed they make be required to make decisions about Jane’s welfare in extreme circumstances in the future. Both the Guardian and the parents supported this decision.
Full judgment available at: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/58.html