Hello and welcome everybody to today's session through Data law. My name is Safta Mahmoud. This then is session two of this two part session where I'm taking you through Children law cases and uh the interrelationship between this and domestic abuse and the use of fact finding hearings. So as you know, the course is providing you with some useful information on the law practice and procedure surrounding the listing of matters for finding a fact hearings both in private Children or cases and those related to public childcare matters. Also, now in the last session, you remember, I spent a fair bit of time going through the private Children law side. We spent some time looking at the position with the development of practice direction to j as early as from 2014, we looked at the updates in 2017. Then more recently in August 2021 we've looked at Domestic Abuse Act 2021 the impact that has had. And also we've been looking at the position with the development of these situations surrounding controlling and coercive behavior. And in particular, I took you through the case of F and M the case handed down by Mr Justice Hayden back in January 2021. So today, then I'm going to be developing these themes surrounding the use of SCOT schedules and particularly in private Children law cases. We'll see how this area has developed over the course of the last year or two. And we'll also spend some time on looking at some of the other aspects surrounding public childcare cases and in particular how the area of hearings in that area has developed and particularly with threshold concession cases. So you remember with the F and M decision that I mentioned Mr Justice Hayden, then really openly uh was needed to address the issues surrounding the use of Scott schedules. And quite rightly, his lordship said that this is something that would need to be explored and considered by more senior courts. And hence this is where in the H N case, the court of appeal did hand down their specific comments on this. So this was a case of H and and others uh handed down on the 30th of March 2021 amongst other senior judges, there was the president of the family division, Sir Andrew mcfarlane. The case itself case itself involved four appeals each which involved allegations of domestic abuse perpetrated by the one parent towards the other. And the case itself gives some very useful guidance about matters which arise relating to final fact hearings in the family court. And as I mentioned in the first session, uh this case specifically referred to practice section 12 J and it emphasized the fact that practice direction 12 J uh does of course give some very detailed guidance as to circumstances surrounding when the court may want to and consider listing a matter for finding a fact hearing when it's necessary. And this is where in particular, you remember in the previous session, I went through some of the various paragraphs, paragraph 5, 14, 15, 16, 17, for example of practice, directing to RJ, which helps us to look to see whether or not to list a matter for finding a fact hearing in private law under circumstances which may necessitate it. And the other thing that the court of appeal emphasized was when it comes to Scott schedules, then any part of the legal process to function fairly and efficiently, we need to make sure that that material is placed before the court, it needs to be organized. Of course, it needs to be structured so that we are clear and therefore we can then direct our attention to that to make sure that the hearing is focused in that regard. And that's why I'm sure many of us will agree that that's why over the years, the practice of doing scot schedules have has helped because it's enabled all of us to hone in on the key matters which need addressing and determining uh in so far as that's concerned. And with that in mind, the court of appeal did say however, that particularly when you look at matters such as F and M, the development of the Domestic Abuse Act 2021 at this stage, by the time H N was decided, uh the bill was still going through parliament, it was due to be implemented the month after H N was decided and hand it down. And also we had of course a development surrounding uh the, the uh the issue surrounding the harm project that had been put together by the Ministry of Justice. So when all of these factors put together as well as the developments around the understanding of coercive and controlling behavior. This is where the court appeal said that one of the key features in this case was as to whether the value of Scott schedules in domestic abuse cases have declined uh to the extent that they were now, in fact, a potential barrier to fairness and good process rather than an aid. So previously, they were used to enable us to hone in on the issues to be more focused, to ensure that our attention was uh the uh towards those particular aspects that need considering. But actually, were they more of a barrier now because we were not able to perhaps focus as much on patterns of behavior, particularly when this behavior is running into weeks and even years in some cases. So when it comes to abusive coercive and controlling behavior, which is likely to have a cumulative impact upon its victims. Then it's difficult in those kind of cases to simply identify it simply by separate and isolated consideration of individual incidents in a scot schedule. So for example, a court makes a direction that your Scott schedule is to be limited to say no more than seven or eight in instances. For example, how are you going to put about five years worth of controlling and coercive behavior into five or six instances? Just not possible. So the court did say that this is something that the private law working party would have to look at as part of its overall approach which looking at revising the charter arrangements program practice section 12 B, the private law working party headed up by Mr Justice Cobb. So this is something that they'll have to be looking into. But in the meantime, until that's done and until there's been more further concrete information on this for now, the president said that there needs to be uh focused towards the fact that where there is a finding of fact hearing, then of course, there's the necessity argument, there isn't necessary and only those allegations which are necessary to support the process should be listed for determination. So in every case where domestic abuse is alleged, the parents should be asked to describe in short terms either in a written statement or really at court at a preliminary hearing, the overall experience of being in a relationship with each other. So effectively providing for a narrative statement. And the court, the president therefore said, and the Court of appeal said that in these circumstances with one or more, both one of both of the parents in a certain pattern of controlling or coercive behavior. Then in those circumstances where finding a fact is necessary and that should be the primary issue for determination of that fact. Funny hearing. So many of you will have experienced that over the course of the last few years. Ever since H N was decided, we are effectively then getting narrative statements and Scot schedule has been put together in that regard. Uh So if you are relying upon specific allegations of abuse, like a particular instance of say physical abuse, for example, that may be put in your Scott schedule. But if you're relying upon a pattern of behavior over a period of time, you may be doing a narrative statement which then will be used by the court in deciding what elements need to be considered at any final fact hearing and making sure that that pattern of behavior therefore, is fully and appropriately being considered at that finding of bacteria. So you can see the kind of thinking behind that in so far as that's concerned. Now, since H L then there's been h and there's been a number of decisions thereafter which have also taken this further. So you, so you got this case of B B for example, so B B domestic abuse back finding 1 2022. And one of the things that this case highlighted in on the 20th of January 2022 was that there is of course benefit in considering the evidence relevant to each form of alleged domestic abuse in clusters. So just like we do in public childcare cases where local authorities will put together a threshold document and, and they have subheadings in terms of instance of physical abuse, emotional abuse neglect. Uh and uh uh sexual abuse, for example, you've got clusters, you could do the same in private law where you can have subheadings where you may have a subheading relates to physical abuse. Another subheading related to economic abuse. Another subheading which relates to maybe uh emotional harm, another one which relates to financial abuse, another one which relates to maybe controlling and coercive behavior. Obviously, there's going to be overlap there, which is inevitable, but at least it gives you uh some direction in terms of how then these matters will be dealt with without any finding a fact here. So again, very useful to bear that in mind. So in terms of finding a fact hearings, there was this significant case of V V in 2015. And one of the things that this case highlights is what is the position then with finding a fact hearing. So are all allegations which are being raised by persons gonna lead to a finding of fact hearing. Well, the simple answer to that is no, it's not required. Of course, in every case, we've already made reference to practice direct 12 paragraphs 14 through to 17, for example. Well, at paragraph 34 of this judgment in v uh Lord Justice mcfarlane as he was then uh did say that uh there is a danger that in any case where a label domestic abuse or domestic violence is used, then there's this almost semi-automatic reaction generated in the minds of caf officers sometimes or other professionals to think that inevitably all these allegations need to be thoroughly investigated, no matter how old they are, no matter how disconnected to a child, they may be and also more willingly. Sometimes it's stored by professionals that if these allegations are proven, it seems to imply that there should be no direct contact between the abusive parent and the child. And of course, that is not the case. Remember those cases that I mentioned earlier, V L V M and H, even if there's findings made that does not raise a presumption against contact are very, very important to go back to those cases. And on the facts of this case of E V, the mother had stopped contact between a child and a father some years previously. But actually, when one explored this deeper, the contact had been stopped because the child was displaying a reluctance to attend contact and not because of the domestic abuse. So again, you do need to ask yourself applying back to section 12 J S 14, 15, 16 and 17. Uh So is these allegations that are being made, even if proven, are they gonna have a bearing on the application before a court? And if it's not, because that's not the reason why contact stopped. You do need to ask yourself whether or not there is therefore a need for a separate finding, a fact hearing. Now, the issue then surrounding uh the uh position with fact findings was also explored further last year by a court of appeal in K against K. This was the decision on the eighth of April 2022. And this was a decision which also gave some very useful and necessary guidance on the proper approach to finding of fact hearings following on from the case of H N 2022. So first of 2021 so the case specifically endorses H N. So obviously, that's still very significant and relevant law. But here, the district judge had reached this decision in K and K before H N was handed down. And the issue, the key issue in this case is whether the judge was right in having had listed a matter for finding a fact hearing and, and those findings that were made. And the court of appeal did decide that on the facts. The judge should not have listed a matter for finding a fact hearing So this was a case where the father saw contact with the child arrangements with the Children. He lodged his application. He ticked the box on ac 100 to say he was, he was exempt from mines on the basis. He wanted a decision urgently, neither the gatekeeping team nor the judge at the first hearing really looked further at the mime exemption and to explore that further. And also, and therefore it was unfortunate that no, no, no, no, the parties including the judiciary really took full advantage of the my the mediation information assessment meeting process had that being done, particularly here with mother was not opposed to the idea of unsupervised contact. You may find that this matter could have been dealt with in a very different way by the court going to my arms, possibly resolving the matter that way rather than the court going down to a finding a fact process. The court said that the the first time in dispute appointment is an opportunity for judicially led dispute resolution. That's what should have been happening in this case on the facts. And sadly, that wasn't done. Had the mother confirmed that the, the mother had the mother confirmed at the hearing that she didn't object to contact. The logistics may have been sorted out by agreement that sadly was not explored here. And the court said that a fact finding hearing is not freestanding litigation. It's not there to enable people to air their grievances. It's not a chance for parents to seek the court's validation of their perception of what went wrong in their relationship. The court needs to only have the finding of factor in what's necessary to consider these allegations that are made, which will then have a bearing on the issue before the court. And it's important that the issues are considered the earliest opportunity to question whether domestic abuse is being raised and whether it's going to be determined. And here, the Mayan position was not fully and appropriately dealt with in those circumstances where it should have been. The other thing which was raised in this case is there was insufficient use made of the family mediation voucher scheme. Now, many of you will know that this is a scheme that became available as from the end of March 2021 it's been extended now to the end of March 2025. And this is the position that if parties do attend the M M because they've been directed or they're required to and they do decide to go down the route of mediation. Then this voucher scheme can give them £500 worth of money towards the cost of that mediation, which certainly in some areas could cover certainly a number of sections. Uh and this was something that was not explored the decision. Therefore, to have a a fact finding on the facts of this case was a premature decision and one that should not have been made in the circumstances. Following on from this case, the president did hand down just a month thereafter. This very important guidance about finding a fact hearings. This is fact finding hearings and domestic abuse and private law Children proceedings guidance from judges and Magistrates. So I would certainly recommend that you do have a look at this. It provides some very, very useful information about the type of situations we cause we then look at the position with finding of fact hearings when to list, when not to list the type of evidence which may require it and the type of evidence which will lead to the court considering uh dealing with that finding of fact hearing going forward. Now that case of F and M that I mentioned the 2021 decision handed down by Mr Justice Hayden has come back, it came back earlier this year uh in F M N 2023 on the 16th of January 2023. And this is one where, as I mentioned in the previous session, the judge had made very serious findings against the father of coercive and controlling behavior in the context of two relationships. In the first relationship, two Children had been born, he was the father. Uh they were now age five and eight. And in fact, he had never met the younger child, a five year old. So this matter came back to court because there were a number of applications that were made. For example, mother had applied for a father to lose his parental responsibility for the Children. Mother sought disclosure of some of the papers to C P S to look at prosecution. Uh There was a 91 14 application made and father was seeking child arrangements. He wanted to have direct contact with the Children. Now his lordship at paragraph two did say that the previous judgment set very serious findings out. It was at the highest end of the index of gravity and very significant findings made us to coercive and controlling behavior. He hadn't appealed. So the father hadn't appealed these findings. And obviously, there's been a lot of comment about controlling coercive behavior in the previous judgment in and others. The father, like I say later did lodge an application for child arrangements for contact with both Children. And this was very soon after the first judgment. And like I say, he had not met the younger child who was five uh in the circumstances in relation to the application for child arrangements. Even though the mother through the assistance of a caf officer was open to the idea of the father having some indirect contact. His lordship did say a paragraph 25 that in relation to the question of indirect contact recommended by CAF CASS and which mother in principle has agreed to uh that troubled the judge for a number of reasons given the serious uh findings that have been made against father. And now his continuing denial of his behavior, his lordship said that there were some cases such as this one where very rarely a parent who has nothing to where a parent has nothing to offer a child and where the child would be better off without them. This was one of those cases. So despite the fact that the mother took a very a brave decision and she was open to the idea of indirect contact and that was the recommendation of a caf gas officer, the judge on the facts and given the serious fines that were made, felt that any form of contact between the Children and the father would not mean they were of her best interests. And therefore, on that basis, there would be no contact at all. So you could see a very, very significant outcome and decision in this case. Now, when some of you are dealing with uh public childcare cases, you'll know that we may well then have situations where there may well be a need for a finding of fact hearing list in those cases. So for example, sometimes you can have cases where there's the F I I to fabricate or induced illness by carers. What previously used to be referred to as Munchausen syndrome by proxy. This could be where a parent may deliberately harm a child which then necessitates medical intervention or may fabricate an illness that may suggest that the child has got cancer, for example, which then necessitates a multitude of various forms of interventions, which in itself would be a form of abuse. Because those interventions such as various tests are being done when the child hasn't even got that uh that uh uh that that condition and the parents is deliberately sabotaging the child's welfare by fabricating this illness, which then necessitates treatment. So that's where you may find is a finding of fact hearing if there's allegations made of that, to determine whether there's any findings to be made of that. We've also got got case of alleged shaken injuries where Children may sustained injuries in the form, maybe a subdue hematoma retinal hemorrhaging where it's alleged that they may have been shaken vigorously, either deliberately recklessly or negligent. For example, the parent may deny this and say it was an accident. So again, you may have a finding effect to determine the cause of injury and to identify if possible who the perpetrator or perpetrators are. And this is where the case of a cancer counselor and a mother, a father X Y and Z 2005 is very important because that shows that the F I I is not a recognized form of psychotic illness. It's more of a state of affairs. It's more of a state of a psychological state that parents may go through in those circumstances. Local authorities in care cases when they are inviting a judge to list a matter for finding a fact hearing, they will then sometimes draw in various uh persons who may then be the pool of perpetrators. It may be the parents, it may be other family members and friends. And this is where the V T case is very important because that emphasizes that even in these cases, even if the local authority were to pull in various family members who are following any finding of fact hearing exonerated, then it's highly unlikely that if that family member seeks costs against the local authority that they will get costs. So V T illustrates that and the thinking behind that is because the local authority have a positive duty to make inquiries, to look at what happened and to consider and to put that to the court. And therefore on that basis, unless they showed that they were highly irresponsible uh in dragging in somebody into the support of perpetrators, it's unlikely that you'll get a cost order made against them, even if that family member is exonerated. When we do have final fact hearings in public law cases, what we also want to try and do is to identify causation, not only causation in terms of how the injury was caused, whether it was an accident or otherwise, but also to try and identify who caused injuries. So we do wish to try and identify uh the perpetrator or perpetrators, but sometimes that may not be possible. So if a child may have suffered, say head injuries for example and say the mother is blaming the father, the father is blaming mother. It may not be possible to say more likely than not date with mother or the father. But this is where the Lancashire County Council decision in the year 2000 shows that if the judge is satisfied that the child was injured, wasn't it killed the parents? And if there is sufficient evidence that it could have been one or the other or both, then the judge can make findings against them even though the judge cannot be satisfied, more likely than not that it was one or the other. So that's sometimes referred to as the lancashire finding that some, some of you know about. But in terms of whether the court should even list the matter for a finding of fact hearing many of you will know that this is where one of the leading authorities on this is the case of this 2014 decision by the Court of appeal. And later that was confirmed in the other case, Children W N T of 2014. And in that case, the leading judgment handed down by the then president of the family division, Sir James Mum. And you've got paragraph 71 in particular of that judgment. And one of the things that both of these cases emphasize is that when you got public law cases, uh there's two main situations where you may have finding a fact hearing. So again, it's got to be very limited. Firstly, got single issue cases where that's the only reason why the local authorities started proceedings. So for example, a local authority commence case proceedings on the basis of say sexual abuse, for example, allegations, then you may get a finding of fact if that's the only reason why they started proceedings because then if you have a fact finding, you call your evidence, if it's found that there is insufficient evidence to show sexual abuse, then that's the end of a case case finishes, you won't then need to move on to welfare. Whereas if they started proceedings on a number of issues, they would say allegations of physical abuse, neglect, emotional harm, substance misuse, domestic abuse, then the physical injuries may not be a single issue in that case. And therefore in that kind of situation, you won't have ordinarily a fact finding hearing, you'll have a composite hearing where everything will be dealt with at the end. So it's not that you won't try and get to the bottom of how those injuries occurred. But those injuries were not the only reason why the local authority commenced proceedings. And if you have a composite hearing at the end to then determine those injuries as well as the other matters. And at the same time, you'll also be dealing with welfare. But in the meantime, leading up to that, the court may well direct either all assessments So there'll be assessments undertaken of the family members in that regard to then help the court would make that welfare evaluation thereafter. Now, the other point that I wanted to emphasize is what do we do sometimes when findings uh when there are already threshold concessions made, so there was already threshold concessions made. But then there's a discussion as to whether or not the local authority should be allowed to pursue this even further because new allegations have come to light. This is where the case of H DH Children, the C hr comes into play and this is where if say you've got sufficient concessions made uh as to thresholds. So let's say the parent concern concedes threshold on the basis of say substance misuse, domestic abuse and say neglect and harm conditions. But there's an allegation of say sexual abuse which they do not agree to. Then is the court going to allow the local authority to then push further to be able to then seek findings potentially on the allegation of sexual abuse? Well, this is where we've got to think about. Obviously, the impact of COVID and the more pressure on the court of 26 weeks. Obviously, all of these factors have to be weighed up in deciding whether the court will allow in those circumstances. And if it's not going to go towards the care plan, if it's not going to go towards contact and given the cost and the expense and the potential unnecessary uh process involved in that. And it's not, if it's not going to have a bearing on the child's welfare, the court may not allow the local authority then to proceed with that. And this was also confirmed in the other case of a local authority and C B and D E and others. We're here despite allegations being made here and a number of witnesses potentially being called. A court has a list of matter for composite hearing at the end, rather than a fact finding involving a multitude of uh potential witnesses. And this issue surrounding whether or not to list for further finding of fact hearing. When there's new evidence that comes to light has been explored. Once again earlier this year, there was a case of H W of 2023 by the court of appeal leading judgment handed down by Lord Justice Baker. And this was a case which involved an appeal by the local authority where the first instance judge had refused. The local authority have a further finding of fact hearing in care proceedings where findings had already previously been made at the threshold were met. And this matter had already been subject to appeal previously in 2022 in relation to the issue of consideration of all realistic options. So what happened is even though there were threshold finds made later, there was another child, age 12, child y uh who made allegations of sexual abuse against one of the fathers F three in this case. And F three was one of the men in this case who together with the mother was putting himself forward as a potential carer for the other Children and therefore the rehabilitation of the Children in his care. But like I say, there was another child who wasn't connected in these proceedings who at the age of 12 alleged that this man had sexually abused this child when the child was much younger, when the child was much younger. And the question therefore was to allow to whether to allow these allegations to be considered and investigated and potentially for there to be a finding of fact hearing in the circumstances. So the court has been asked by the local authority to list a matter for further finding a fact hearing. Now the judge said that these allegations that the judge made related to a period when the child was about to between two and six years of age. And the question was that, uh since then, there had been a child protection medical done and the records of the examination were not available, but it didn't seem to suggest that one of the allegations a child made, which was that this man had stabbed the child with a knife and left mark, there was no evidence to show any scarring. So therefore that in itself cast some doubt as to what had been said. Now the court did say that the previous judgments in relation to the issue of whether to allow further findings of fact had already been explored. In the previous judgments, there was the Oxfordshire County Council decision, the more recent H DH case that I mentioned and we see and even though there's been judgments such as the Barn decision last year, which provides some comment on this for the avoidance of doubt. The H DH case was still very much the leading decision on this. And what the court of appeal decided was that of course, there is a need for robust case management by judges and here on the facts, the judge was being asked to make a very, very difficult decision on the facts in at a busy family court doing part of a case management hearing. The judge quite rightly was concerned about the delays that had already been occurred in the proceedings and further delays that may be caused because the judge was very skeptical about whether the next hearing as the local authority suggested could be used for finding a fact hearing in these circumstances. And therefore the potential issues over disclosure, the issues over whether the child should be joined as a party and therefore the potential delay going forward. But nonetheless, given these allegations that they were made, given that they were going to have a significant bearing on the care plan and on contact uh going forward, it was necessary to enable the local authority on the facts to explore this and able to have a further fact finding. Yes, there was the absence of medical evidence and yes, these allegations were historical, but that in itself was not a reason to deny the local authority to have this finding a fact, even on the facts, particularly given that this was going to have a bearing on both the care plan and also the issue of contact. So therefore, the the appeal was allowed. Ok, so that as you can see, sums up the current position as it stands in relation to the position with finding fact hearings in public childcare cases. Ok. So that brings this session to an end. So you can see I've covered a fair bit today and in the previous session and looking at a coercive and controlling behavior, the use of fact findings, particularly when there's allegations of domestic abuse both in the private Children law context and also in the context of public law cases. Ok. So I hope that's been useful for you. Can I thank you as always very much for listening to me and uh I look forward to speaking to you next time. Thanks very much. Indeed.
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