An article by Sandamini Ethakada.
The Judgment handed down in the case of Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 (hereafter Re H-N) by the Court of Appeal on 30 March 2021, was, in many respects a landmark decision which many of us in the legal profession may fairly describe as timely and long overdue.
Whilst it could be argued that, in theory, this Judgment did not introduce any new and radical changes to the law and the Court of Appeal was, in fact, exploring and clarifying legal principles that have been in existence for some considerable time, it could equally be argued that the practical effect of the Judgment was revolutionary, especially in the lower courts where fact finding hearings form a regular and crucial part of family proceedings.
Understandably, the Judgment of Re H-N gave rise to numerous questions: is this the start of a radical change with respect to how allegations of domestic abuse are now going to be litigated in practice within family proceedings? Are the days of advocates being told that – “allegations are limited to 6”, being told that, certain allegations will not be determined because they are “historic” or because they “predate the breakdown of contact or separation”, over? Will this prevent Courts from declining to determine allegations of controlling and coercive behaviour on the basis that they are not on the same level of ‘seriousness’ as the allegations of physical/sexual harm? Or, is it the case that, nearly 15 months from the date on which the Court of Appeal handed down the Judgment in Re H-N, the approach remains largely unchanged with only lip-service being paid to the significant legal principles set out by the Court of Appeal?
What exactly did the Court of Appeal in Re H-N say?
The Court of Appeal, in this case, highlighted a number of significant legal principles.
The Court clarified that it is indeed possible to be a victim of controlling or coercive behaviour or threatening behaviour without ever sustaining a physical injury and that specific incidents, rather than being seen as isolated incidents, may be part of a wider pattern of abusive and controlling behaviours [P27].
It would not be fair to highlight these important principles without noting that the groundwork for these principles was laid down by Mr Justice Hayden in his illuminating Judgment in F v M [2021] EWFC 4, just two months before the Judgment in Re H-N was handed down. The Court of Appeal in Re H-N, hailed the Judgment of F v M, which was described as being “essential reading for the Family Judiciary” by the Court of Appeal. The Court of Appeal quoted generously from Mr Justice Hayden’s Judgment, including his observation that the “key” to coercive and controlling behaviour is an “appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation” [29]. Mr Justice Hayden highlighted the insidious reach of this form of abuse and shared his impression that this is an area that requires greater awareness and more focused training. Therefore, for advocates “on the ground”, who may have been told in the past by a Judge or a bench of Magistrates that they will not be determining allegations of controlling/coercive behaviour because they are “not as serious” as other forms of abuse, this undoubtedly marked a welcome change in approach.
The Court of Appeal explained with reasons as to why a pattern of behaviour is as relevant to the child as it is to the adult victim and clarified that, although the principal focus of their Judgment was on controlling and coercive behaviour, the reference to a pattern of incidents apply “equally to all forms of abuse” [P31-33].
Another refreshing aspect of the Judgment was the Court’s cogent remarks on the restrictive nature of Scott Schedules. There were two primary concerns (concerns of principle and pragmatic concerns) raised in oral submissions in relation to Scott schedules. The concern of principle was that there was a need for the Court to look at the wider context of whether there has been a pattern of abuse as opposed to a list of factual incidents given that such behaviour is likely to have a “cumulative impact on its victim which would not be identified simply by separate and isolated consideration of individual incidents” [44]. The second and pragmatic concern, related to the first, was that the process of reducing and/or adopting a selective approach produced a false image of the relationship being scrutinised by the Court. The concern was that, by reducing its field of focus, the Court risked depriving itself of a “vantage point” from which to view the quality of the alleged perpetrator’s behaviour as a whole and, importantly, removed the opportunity of considering whether or not there has been a pattern of abuse. This would, in turn, have an impact on the basis and extent of the risk assessment that follows.
The Court of Appeal acknowledged the force of both concerns raised and observed that there is a need to develop a different way of summarising and organising the allegations and that there needed to be a move away from Scott schedules. However, regrettably (and perhaps understandably), the Court of Appeal did not take it further than this, only observing that the Court is not the “appropriate vehicle” to do more than describe the options suggested by the parties and that it would be “for others, outside the crucible of an individual case or appeal, to develop these suggestions into new guidance or rule changes” [46].
The Court of Appeal also specifically clarified that the approach of dismissing allegations of abuse because they are “in the past” is to be considered as “old fashioned” and “no longer acceptable” [52].
Whilst it is entirely right that the above critical aspects of the Judgment should be welcomed, discussed and applied, it is also vital to be mindful of the wider framework, as set out by the Court of Appeal, within which the above principles operate. It is important to bear in mind that, whilst it is entirely right that the Court of Appeal cautioned against limiting the number and nature of allegations, against sticking to Scott schedules slavishly and emphasised the importance of looking at a pattern of abuse rather than isolated incidents, it did so against the backdrop and in the context of, the following legal principles:
- The need for ‘procedural proportionality’ both when determining whether or not there should be a fact-finding hearing and during a fact-finding hearing.
- The need to read and apply Practice Direction 12J (hereafter PD12J) in conjunction with the overriding objective.
- the importance of the word “necessary” as it appears in PD 12J (paras 16 and 17). The Court of Appeal quoted from the President’s Guidance “The Road Ahead”, reiterating that “there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.’… ‘ 46. Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court.”
- Reiterated that, the stages, as set out in PD12J, must be followed and that when a Court has the task of determining whether or not to hold a fact-finding hearing, the purpose/s should be kept in mind – the purposes being the need to provide a factual basis for assessment of risk, welfare or other assessment and to consider any final welfare-based orders. The Court of Appeal emphasised the importance of considering whether or not there is other evidence which provides a sufficient factual basis to proceed and the relevance the allegations have to the issues the Court will need to determine.
- It was also the Court of Appeal’s expectation that, where the Court is determining an alleged pattern of coercive and/or controlling behaviour, and where the Court has made that issue its primary focus, the need to determine a range of subsidiary date-specific factual allegations will cease to be ‘necessary’. The court set out two exceptions to this. Firstly, an exception is to be made if any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour and secondly if the subsidiary allegations are of potential probative relevance to the alleged pattern of abuse.
It would therefore be a misconception to think that Re H-N has given parties and advocates a “free pass” to litigate an unlimited number of allegations over a number of days. The interplay of the above principles means that there will inevitably still be cases where the Court can and should legitimately reduce the number of allegations and restrict the scope of the hearing. However, it is felt that the difference will be that the process, reasoning and analysis adopted in doing so must now be “Re H-N compliant”. In other words, “the pre-Re-H-N approach” of dismissing allegations because they are “historical” or because they are “similar” or because coercive/controlling is not “as serious” is likely to be entirely at odds with the approach adopted in and endorsed by the Court in Re H-N and therefore vulnerable to being challenged. Therefore, any Judge approaching the task of determining whether or not there should be a fact-finding hearing and if so, which allegations should be determined will need to strike the right (and undoubtedly challenging) balance between ensuring that there are a sufficient number of alleged incidents in order for the Court to properly consider whether there has been a ‘pattern of abuse’ whilst also complying with the principles of proportionality, the overriding objective and allocating the right amount of court time and resources to the case.
The landscape post Re H-N
The landscape post Re H-N looks promising. There have been a number of reported cases where the principles of Re H-N have been carefully and meaningfully applied and upheld while taking into account the wider legal and procedural framework reiterated by the Court of Appeal.
In the case of Re K [2022] EWCA Civ 468, Sir Geoffrey Vos, Master of the Rolls, sitting in the Court of Appeal, endorsed the approach adopted in Re H-N. He noted that the decision to hold a fact-finding hearing is a major judicial determination and reiterated the importance of identifying the welfare issues, the nature of the facts alleged and their relevance to the welfare issues, wherever a fact finding is being considered. He was critical of the fact that, in this particular case, contrary to the principles as set out in PD12J and Re H-N, at the earlier stages of the proceedings, the issues concerning welfare were not identified or analysed and the relevance of the allegations to the issues of welfare were not properly considered prior to a fact-finding hearing being ordered. He went onto describe the decision to hold a finding of fact hearing as being “premature”. One of the key points emphasised by Sir Vos was that a “fact-finding is only needed if the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare”. He was careful to add that this is not resiling from Re H-N. It would be fair to go further and say this approach was endorsed by the Court in Re H-N.
He summarised the following to be matters that should be considered when the Court is determining whether or not to order a fact-finding hearing: (a) the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order, (b) that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child, (c) whether fact-finding is necessary or whether other evidence suffices, and (d) whether fact-finding is proportionate. This is a succinct summary of the broader framework of the legal and procedural principles endorsed by the Court in Re H-N [at para.66]. He also reiterated the other crucial aspect of this framework that, whilst there is a requirement to consider an overarching issue of coercive or controlling behaviour, where to do so is necessary for the determination of a relevant welfare issues, this does not mean that there is a requirement for the court to determine every single subsidiary factual allegation that may also be raised.
In summary therefore, this case is a good reminder, post Re H-N, of the broader legal and procedural framework at play and a caution against ignoring the fundamental principles that underpin the more contextual and broader approach endorsed by the Court of Appeal in Re H-N with respect to allegations of domestic abuse.
In the case of Ms B v Mr P 2022 WL 00973865, HHJ Levey found that the District Judge who dealt with the fact-finding hearing had not complied with the principles of Re H-N and had erred by looking at allegations and making findings in isolation rather than standing back to consider the evidence as a whole and specifically whether there was evidence of a pattern of abusive behaviour. He went onto say that, had the Trial Judge done so, she would have surely seen that the respondent’s behaviour, in this particular case, could have been characterised as forming such a pattern.
In the case of Re S [2022] 3 WLUK 377, Mr Justice Morgan, allowed an appeal by the mother with respect to setting aside the Trial Judge’s decision at a fact-finding hearing. One of the grounds of appeal which was upheld was that that the Judge had erred by precluding the mother from relying on historic allegations of domestic abuse which had pre-dated a previous Child Arrangements Order. The Court found that, in doing so, the Trial Judge had failed to comply with the principles as set out in Re H-N and PD12J and that court had denied itself a full and informed understanding of the circumstances which would form the basis for assessments of risks and decisions with respect to the child.
The case of BY v BX [2022] EWHC 108 (Fam) is an important case that followed in the wake of Re H-N. This was a case that was remitted by the Court of Appeal to the High Court for hearing following the conjoined appeals which were reported as Re H-N. This case was then known as B-B. Mr Justice Cobb helpfully illustrates the form that the practical application of the principles as set out in Re H-N may take, in the following comments/observations he makes [6]:
- He notes the benefit of considering the evidence relevant to each different form of alleged domestic abuse in “clusters”. He observes, “…inevitably, the evidence relevant to each form of abuse overlapped in places, but in looking at the evidence by reference to the different forms of alleged abuse, a picture was built up of the nature of the relationship under scrutiny, and it was easier to see whether patterns of behaviour emerged.” He noted that this may not have been so apparent had the matters been looked at individually or as free-standing items on a Scott Schedule and went onto say that he accepted the Court of Appeal’s view in Re H-N “that it is the cumulative effect of individual incidents within each of those clusters of abuse-type, and of each type of abuse on the other, which give the clearest indication of the experience of abuse”.
- He also kept in mind the broader framework when he honed in on the need for advocates to focus on those issues which are necessary to determine, and for oral evidence and submissions to be cut down only to that which it is necessary for the court to hear;
- He also commented on the fact that the evidence of the principal parties is always likely to be far more valuable than the evidence of supporting witnesses and that at the case management stage, Judges should rigorously explore with parties and their advocates as to what (if any) real value is likely to be brought to the enquiry by the evidence of third parties.
He reiterated the broader framework, including the guidance in “The Road Ahead” and the principle set out in Re H-N that, it is the responsibility of the individual Judge or bench of Magistrates to proportionately and robustly manage the case and maintain control of the court process where it has been determined that a fact-finding hearing is necessary.
This is also a case where Mr Justice Cobb made the overarching allegation of coercive and controlling behaviour the primary allegation and singled out other individual allegations for discrete determination taking into account the two categories set out by the Court of Appeal in Re H-N.
The case of GK v PR [2021] EWFC 106, an appeal before Mr Justice Peel, notably reiterated the concerns about the use of Scott schedules, noting that the risk of applying the Scott Schedules is that “the judge approaches the case in a formulaic, incident by incident way which detracts from the holistic overview necessary to determine fluid and nuanced patterns” [22]. He also raised the concern that there is a risk that incidents which may appear trivial are overlooked and not relied upon. He did go onto observe that there may be some cases where a Scott Schedule may be appropriate and gave the example where the complainant alleges a small number of specific incidents without asserting a pattern of behaviour.
Conclusion
It would be fair to conclude that, as per the reported cases, at least, the legal principles, as articulated in Re H-N, appear to be applied in a rigorous and thorough manner by the higher courts. However, it is harder to gauge, at this relatively early stage, the extent and the consistency with which they are applied in the lower courts (particularly at the level of District Judges and Magistrates. My own experience and conversations with other barristers and Solicitors do indicate that the old rhetoric of “limiting Scott schedules to 6 allegations” and a reluctance to determine “historic” allegations, still linger within the lower courts, especially at the level of Magistrates. There also still remains uncertainty as to the best way of presenting the allegations, if not by way of Scott Schedules. Therefore, it is felt that there does remain more work to be done, at all levels, to ensure that the principles as set out in Re H-N and the spirit of that Judgment, are consistently applied and adhered to. Mr Justice Hayden, in his Judgment in F v M, noted the need for there to be greater awareness and more focused training for the relevant professionals with respect to coercive and controlling behaviour [see para 4]. In my opinion, it is worth considering whether this recommendation for training and awareness should be extended more generally to include the key principles set in Re H-N, particularly amongst Magistrates and Legal Advisers? It is also important that, as Barristers and Solicitors, we continue to assist the Judiciary by drawing attention, where needed, to the relevant principles as set out in the case law and crucially assist the Court in identifying, at an early stage in proceedings, the welfare issues and the allegations relevant for the determination of these issues including specifically whether a pattern of abuse, as opposed to a few isolated incidents, are being alleged.
