Fact-finding hearings and child contact cases

Fact-finding hearings and child contact cases

Teertha Gupta QC of 4 Paper Buildings discusses Re A (A child: Wardship: Fact Finding: Domestic Violence), the shift in how and when fact-finding hearings are carried out, cultural issues in children cases, and the requirements of Practice Direction 12J.

Original news

Re A (A child: Wardship: Fact finding: Domestic Violence) [2015] EWHC 1598 (Fam), [2015] All ER (D) 94 (Jun)

In the context of wardship proceedings brought by the father in respect of the child, A, the court embarked on a fact-finding exercise in the light of the disputed allegations made by the mother as to serious domestic violence as well as abusive behaviour towards the child himself. Taking into account the factors set out in the Family Procedure Rules 2010, PD 12J (FPR 2010), as to the making of a child arrangements order in cases where domestic violence is alleged, the Family Division held that, on the evidence, A had suffered the trauma of witnessing events of considerable violence between his parents. There had not been treatment of A of the kind that would merit the term physical abuse. The court was certain that from early on in the marriage, as the mother claimed, there was real unhappiness caused by the father's actual violence. Whether it would be in A's best interests to seek to rebuild some kind of relationship with his father would depend on the father's reaction to the judgment.

What was the significance of FPR, PD 12J in this case, and how would the courts generally approach the requirements of that?

This is the new breed of fact-finding hearing--in recent years there has been a shift away from 'automatic' fact-finding hearings to a separate forensic analysis of allegations only where it meets the relevance, necessity and proportionality criteria. In view of the overriding objective and the courts' responsibilities to other cases, discrete fact-finding hearings are now only used in cases where the allegations are serious and where findings will have a definite impact on future decisions. Before the revised FPR 2010, PD 12J came into effect on 22 April 2014, the approach was laid down by Sir Nicholas Wall, the former President of the Family Division, in his guidance in relation to split hearings (dated May 2010). The new PD12J supplements FPR 2010, SI 2010/2955, Pt 12 and incorporates and supersedes the previous guidance. In Re A Pauffley J placed heavy reliance on PD 12J, citing paras 36 and 37, and the latter paragraph is worthy of repetition as it explains why fact-finding hearings are necessary in child contact cases:

'In every case where a finding of domestic violence or abuse is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider:

(a) the effect of the domestic violence or abuse on the child and on the arrangements for where the child is living;

(b) the effect of the domestic violence or abuse on the child and its effect on the child's relationship with the parents;

(c) whether the applicant parent is motivated by a desire to promote the best interests of the child or is using the process to continue a process of violence, abuse, intimidation or harassment or controlling or coercive behaviour against the other parent;

(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and

(e) the capacity of the parents to appreciate the effect of past violence or abuse and the potential for future violence or abuse.'

Courts in general have to exercise an objective approach in deciding whether a fact-finding hearing is necessary, gone are the days when one is simply ordered because the Children and Family Court Advisory and Support Service (Cafcass) says it requires one. Instead the criteria in FPR 2010, PD 12J, para 17 are considered, for example para 17(g) provides that in determining whether it is necessary to conduct a fact-finding hearing the court should consider 'whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court'. This all points to a far more streamlined process where, more often than not, fact-finding will be rolled up within a final hearing. However, this case provides a useful illustration of where a discrete (High Court) fact-finding hearing is necessary.

To what extent will cultural issues usually impact on children cases?

A child's cultural heritage is an important component of his or her identity. However, para [67] of Pauffley J's judgment is interesting, where she says:

'I do not believe there was punitively harsh treatment of A of the kind that would merit the term physical abuse. Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. In this instance, and on the basis of his ABE interview, A did not appear to have suffered more than sadness and transient pain from what was done to him.'

Earlier in her judgment, at para [62], the judge described what the child (aged rising eight) had said to the police in an achieving best evidence (ABE) interview:

'In the context of a question from the officer about what he did on 17 October--and seemingly out of the blue--A said, "I did my homework...With his belt, he kind of hits me." A little later, A is asked, "OK and how does he hit you?" A who was by then looking directly at the officer, said, "With a belt...A long belt." He described being hit on his back and leg and said it was "kind of fast, to hit me." Asked how he felt, A said "Sad...But I'm little brave...I'm not scared of him...But normally I'm sad." In response to questions as to whether it hurt, did it leave marks and whether they "went quite quickly", A did not reply verbally but nodded his head to all three inquiries.'

This has caused some debate in certain quarters and justifiably so. What is the 'proper allowance'? Is there a different rule to be applied to parents who hit their children if they are from communities newly arrived from abroad? I for one have difficulty in reconciling the judge's comments with the facts in the instant case, the Indian community having 'long arrived' in England (and vice versa) and there being an inextricable history of the two countries over the last 300 years. Furthermore, the facts of this case arguably do not warrant such an approach--the father having arrived in England in 2006, nine years ago. I also see the argument that such an allowance opens a gateway to some type of 'cultural licence' for parents to behave in a way that would be inexcusable to 'native' parents of the UK. Regrettably, while the Family Division of the High Court does not reflect the cultural make up of many of the litigants that appear before it, judges will feel that they need to tread on eggshells and be wary of cultural excuses for certain types of behaviour, when to do so would be potentially to misunderstand what is normal in any given culture and to risk unfairness to others.

Where the court finds that there has been domestic abuse of a parent, how may that influence the outcome in relation to the child?

This is all a matter of degree and, as usual, revolves around the facts of any particular case. The question is whether the abusing parent accepts the findings and what they need to do to change their behaviour and ensure that it will not reoccur in front of the child. Further assessments are required before any final decision can be made about contact between the parent and their child.

What can family lawyers take from this case?

Family lawyers can see from Re A when a fact-finding hearing is now necessary under FPR 2010, PD 12J. In addition, they can readily see the effect on a parent's credibility regarding future judicial decisions and can imagine the effect on the mother's immigration application and potential ancillary relief application on grounds of conduct.

Teertha Gupta QC has been a barrister for 24 years and was appointed Queen's Counsel in March 2012 as a specialist family practitioner in international family law, namely the international relocation of children, cross-border parental abduction, and representing adults where there are allegations of forced marriage or of being stranded abroad by the other spouse. International jurisdictional instruments and treaties as well as 'fact finding' in hotly contested domestic private and public law matters are also his forte.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.



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About the author:

Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.

Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.

When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).