Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom

Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom.

Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom.

Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: Re H-N and Others

The purpose of this article is to distil the recent decisions in F v M [2021] EWFC 4 (Fam) and Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, both of which relate to the Family Court’s handling of cases involving domestic abuse.

Re H-N and Others

The background

Re H-N (McFarlane P, King LJ and Holroyde LJ) concerned the conjoined appeal of four cases involving fact-finding hearings. I do not intend to go into the facts of each appeal, but for completeness I shall state that three of the appeals were allowed (one in part) and one (Re H) dismissed (on the grounds that the appeal was purely academic in that the Appellant had no desire to stop or curtail the unsupervised contact between the child and the Respondent which was currently taking place).

The Court of Appeal did however seek to give some ‘general guidance’ in relation to how the court approaches cases of domestic violence, most notably on the following issues/questions:

  1. Is Practice Direction 12J fit for purpose?
  2. What is coercive and controlling behaviour
  3. Whether there should be a fact-finding hearing?
  4. Scott-Schedules
  5. How should allegations of coercive and controlling behaviour be approached in a finding of fact hearing
  6. The relevance of criminal law concepts.

Is PD12J fit for purpose?

It should firstly be noted that the Court endorsed PD12J as currently drafted stating (at para 28) ‘We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings.’

What is coercive and controlling behaviour?

The Court recognised that a central concept of the modern definition of domestic abuse was that of coercive and controlling behaviour and further recognised the difficulties and issues of the application of PD12J. In doing so it commended and endorsed the judgment of Hayden J in F v M calling it ‘essential reading for the Family judiciary’ (para 30).

The Court went on to recognise that harm to a child is not limited to actual violence to the child or parent and stated that ‘a pattern of abusive behaviour is as relevant to the child as the adult victim’ and gave examples of how a child can be harmed at para 31:

‘[…] The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
i) Is directed against, or witnessed by, the child;
ii) Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;
iii) Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
iv) Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.’

In relation to coercive and controlling behaviour (and all other forms of domestic abuse) the Court also endorsed the approach set out by Hayden J of recognising a ‘pattern’ of behaviour as defined in PD12J.

The Court were also clear to recognise that not all behaviour will be classed as abuse and stated at para 32:

‘It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour.’

Should there be a fact-finding hearing?

The Court was clear to endorse the approach set out in PD12J particularly paras 5,16 and 17 (para 35).

It confirmed, having analysed the contents of PD12J, the President’s Guidance ‘The Road Ahead’ and the Overriding Object, that whether a fact-finding hearing should take place will be a question of ‘necessity’ (para 36) and provided the following guidance at para 37:

‘37.The court will carefully consider the totality of PD12J, but to summarise, the proper approach to deciding if a fact-finding hearing is necessary is, we suggest, as follows:
i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).
ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.
iii) Careful consideration must be given to PD12J.17 as to whether it is ‘necessary’ to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.
iv) Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance as set out in ‘The Road Ahead’.’

Scott Schedules

In the course of submissions there was ‘effective unanimity that the value of Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid’ (para 43). There was concern on two fronts, one of principle, in that Scott-Schedules made it difficult for a court to look at a pattern of behaviour when focusing on timed and dated incidents, and one more pragmatic, in that courts were asking that allegations be limited or reduced which could cause a false portrayal of a relationship between two individuals (paras 44 and 45).

The Court accepted the criticism of Scott-Schedules at para 46:

‘46. For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be. This is an important point. Everyone agrees.’

However, at para 49, stated that it could not determine how the information should be presented:

‘49.The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties in their submissions during the course of the hearing. It will be for others, outside the crucible of an individual case or appeal, to develop these suggestions into new guidance or rule changes.[…]’

How should allegations of coercive and controlling behaviour be approached in a finding of
fact hearing?

The Court set out a detailed discussion at paras 50-59 of the judgement. Ultimately the Court left the detail to the trial judge but stated at para 56 and para 59 that where one party made allegations of coercive and controlling behaviour then these would be the courts primary focus above individual dated allegations and they should only be determined ‘because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).’ (para 59)

The Court recognised that dealing with allegations of coercive and controlling behaviour without significantly increasing the timescale of private law proceedings was not an easy balance, but gave four ‘pointers’ at para 58 in relation to this:

a) PD12J (as its title demonstrates) is focussed upon ‘domestic violence and harm’ in the context of ‘child arrangements and contact orders’; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;

b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is ‘necessary’ in order to:
i) Provide a factual basis for any welfare report or other assessment;
ii) Provide a basis for an accurate assessment of risk;
iii) Consider any final welfare-based order(s) in relation to child arrangements; or
iv) Consider the need for a domestic abuse-related activity.

c) Where a fact-finding hearing is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be listed for determination;

d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.’

The relevance of criminal law concepts

In short the Court endorsed the approach in Re R (Children)(Care Proceedings: Fact-finding Hearing) [2018] 1 WLR 1821 that ‘it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.’ (para 62). They further confirmed that the judgment in Re R prevailed over anything contrary in the judgment of Russell J in JH v MF [2020] EWHC 86 (Fam).

The Court did however clarify that Judges in the Family Court should not shy away from using criminal terms (i.e. rape) in the way that it would be used in ordinary speech, but that they are not required to find that the elements of a criminal offence have been made out, in order to make a finding. (paras 60-74).

Conclusion

For me, the five key points to take away from the recent decisions are:

  1. Courts should always be on the lookout for coercive and controlling behaviour in cases where domestic abuse is raised. When is it raised, a pattern of behaviour should be looked at rather than individual (possibly innocuous) incidents.
  2. Fact-finding hearings should only be held when necessary and not all negative behaviour in a relationship will be domestic abuse or require a fact-finding.
  3. If the court’s focus is coercive and controlling behaviour then this will take precedence over individual incidents unless they are so serious on their own (i.e. rape) or are part of a pattern of behaviour.
  4. Scott-Schedules may not always be appropriate, especially for allegations of coercive and controlling behaviour.
  5. Criminal definitions should not be used in the family court, but nor should Judges shy away from using or making findings of behaviour described by criminal terms (i.e. rape) when they are words in ordinary everyday use.
Joshua Walters
Fenners Family Group
Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: F v M

Domestic abuse in the Family Court: F v M

The purpose of this article is to distil the recent decisions in F v M [2021] EWFC 4 (Fam) and Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, both of which relate to the Family Court’s handling of cases involving domestic abuse.

F v M

The background

The judgment of Hayden J followed a 10 day fact-finding hearing in the High Court in November 2020. During the course of the hearing the Judge heard evidence from the parents F and M together with M’s parents; evidence from F’s current partner (Ms J), Ms J’s Mother, Ms J’s ex-husband (and Father of her children) and from professionals.

The evidence focused on F’s relationship with his ex-wife (M) and his current partner (Ms J- whose children had been ordered to live with their Father in separate proceedings in Cardiff, after her relationship with F commenced). The evidence demonstrated that principally F’s behaviour resulted in the isolation of M and Ms J. The control of them emotionally, psychologically and financially and that this could be properly categorised as coercive and controlling behaviour.

After setting out in some detail the evidence he had heard, at para 101 of his judgment, Hayden J concluded:

101. I consider F to be a profoundly dangerous young man, dangerous to women who he identifies as vulnerable and dangerous to children. The risks he presents to women are not only to their emotional and physical well-being but also, in the light of my findings, to their sexual safety. It is clear that he has the capacity to cause much harm and distress to those who cross him more generally, particularly those within the sphere of the women he controls. It has been a disturbing case to hear.

The two most crucial aspect of the judgment are a) the analysis of what coercive and controlling behaviour is and how it should be approached by the Court and b) the post script discussion regarding Scott-Schedules.

Coercive and controlling behaviour

At para 102 of his judgment, Hayden J set out the lack of authority in relation to coercive and controlling behaviour:

102. This may be the first time the Family Court, at High Court level, has been called upon to analyse allegations of controlling and coercive behaviour with the kind of detail that this case has required. Certainly, neither Counsel nor I have been able to find any other reported case in our respective researches.

Hayden J sought to pull together the various sources available by analysing the definitions of coercive and controlling behaviour and domestic abuse in PD12J (para 103 and 104) and also the criminal offence of coercive and controlling behaviour in an intimate family relationship as per section 76 Serious Crime Act 2015 (para 105). He concluded that the court when faced with a case of coercive and controlling behaviour should approach it in the following way (para 108-109):

108. I do consider that a tight, overly formulaic analysis may ultimately obfuscate rather than illuminate the behaviour. I respectfully agree with the general approach taken to evaluating evidence expressed by Peter Jackson J (as he then was) in Re BR (Proof of Facts) [2015] EWFC 41 and Baker J (as he then was) in Devon County Council v EB and Others [2013] EWHC 968. Whenever Judges are called upon to resolve issues of fact, we do so by evaluating separate strands of evidence and then considering them in the context of the whole. Some features of the evidence will weigh more heavily than others and evidence which may not be significant, in isolation, may gain greater relevance when placed in the context of the wider evidential canvas. It seems to me that the definition in the FPR (see para 101 above) provides some useful guidance, when it is broken down:

Coercive Behaviour:

  1. a pattern of acts;
  2. such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
  3. the objective of these acts is to harm, punish or frighten the victim.

Controlling Behaviour:

  1. a pattern of acts;
  2. designed to make a person subordinate and/or dependent;
  3. achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.

109. The overall approach to the assessment of evidence here is the same as in any other case. What requires to be factored into the process is the recognition of the insidious scope and manner of this particular type of domestic abuse. The emphasis in Section 76 of the Serious Crime Act 2015, is on “repetition” and “continuous engagement” in patterns of behaviour which are controlling and coercive. Behaviour, it seems to me, requires, logically and by definition, more than a single act. The wording of FPD 2010 12J is therefore potentially misleading in so far as it appears to contemplate establishing behaviour by reference to “an act or a pattern of acts”. Key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the context of wider behaviour. I emphasise it is the behaviour and not simply the repetition of individual acts which reveals the real objectives of the perpetrator and thus the true nature of the abuse. (my emphasis)

A repeated message throughout the judgement (paras 4, 60, 100, 109-113) is that those dealing with allegations of coercive and controlling behaviour must be cautious before viewing allegations in isolation, particularly where a single act may appear innocuous on its own (as per para 49). As Hayden J puts it at para 4:

4. Key to both behaviours (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.

Scott Schedules

At the conclusion of the judgment, Counsel for M invited the Judge to comment of the appropriateness of Scott-Schedules in cases involving allegations of coercive and controlling behaviour.

Although he found it inappropriate to give ‘prescriptive guidance’ and said that there were clear advantages to ‘carefully marshalling and honing down the evidence’, he did recognise that in some cases the formulaic nature of Scott Schedules may not easily capture the behaviour complained about and in some cases, such as M v F a Scott-Schedule may be ‘counterproductive’ as they carry ‘the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour’.

Hayden J concludes his judgment with what could be considered an attack on the Scott- Schedule, but ultimately leaves it to the trial judge or ultimately, The Court of Appeal, to determine on another day:

It is, I hope, clear from my analysis of the evidence in this case, that I consider Scott Schedules to have such severe limitations in this particular sphere as to render them both ineffective and frequently unsuitable. I would go further, and question whether they are a useful tool more generally in factual disputes in Family Law cases. The subtleties of human behaviour are not easily receptive to the confinement and constraint of a Schedule. I draw back from going further because Scott Schedules are commonly utilised and have been given much judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. Whether a Scott Schedule is appropriate will be a matter for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach.

Joshua Walters
Fenners Family Group
Public law working group: Recommendations to achieve best practice in the child protection and family justice systems

Public law working group: Recommendations to achieve best practice in the child protection and family justice systems

Public law working group: Recommendations to achieve best practice in the child protection and family justice systems

As the Public Law Working Group’s Best Practice Guidance (BPG) has been published in March 2021, we thought it would be helpful to provide a quick overview setting out the key points. It’s rather long (at 191 pages) so we’ve prepared a snapshot of the key points which we hope you will find helpful.

The full document can be found here:
https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf

May I encourage everyone to look out for training on the new Guidance over the coming weeks and months. Training will be provided by various organisations, including the Family Law Bar Association. Our own Cambridgeshire Local Family Justice Board/Fenners Training on the BPG and implementation locally will take place by webinar on 16 June 2021. If you would like to register to attend, please contact our clerks who will send you the registration link once available.

IntroductionThe BPG recognises that public sector budgets have reduced significantly over the last ten years. Initial referrals to children’s services have increased by 22% and the number of children subject to a child protection plan have increased by 87%. The situation in public law is further exacerbated by the 23% increase in private law demand since 2014.

It is acknowledged that there are different practices across the county for a variety of reasons and approaches that work in one local authority area may differ in another.

It will no doubt be reassuring to many of us working locally that a number of the recommendations are already part of established working practices. The BPG seeks to achieve a greater uniformity of approach without standardising child protection processes.

We are reminded that the welfare of the child is paramount and that the BPG are, of course, subject to the legislative provisions and statutory guidance. The aims are to ease the burden and pressures of all involved in the family justice system and to ensure, wherever possible, that children are safely raised within their family network.

Focus on well-being remains, although some practitioners may feel a raft of new templates do not particularly assist us in that area however we are assured that those areas of the county piloted thought the same way but now feel the benefits – fingers crossed!

Headlines

  • 47 core recommendations + 15 longer term recommendations
  • Child’s lived experience and the voice of the child must be central to our work
  • A continuing focus on well-being of those involved in the family justice system
  • Renewed emphasis on initiating work at the pre-proceedings stage and early enough to be effective in addressing the harm identified
  • New C110a application form is being developed and pending the online roll-out, a new “information form” is introduced where an urgent hearing is sought
  • New templates for letters before action, section 20 agreements, case summaries, position statements and advocates’ meeting agendas
  • Final hearings not to be listed until IRH when issues are clarified unless there are, unusually, cogent reasons in a particular case for departing from this practice
  • Further sub-group to consider supervision orders
  • Care orders at home only appropriate in exceptional cases

PUBLIC LAW PROCEEDINGS

Issuing

  1. C110a is to be amended and rolled out online
  2. In the meantime, separate “information form” for urgent cases (Appendix F3)
  3. Threshold findings to be included in c110a using concise numbered paragraph form
  4. CAFCASS to be notified – not just on issue – but at point where the local authority decide they will be issuing proceedings

Urgent hearings

A reminder to all practitioners that urgent hearings are of limited use because parents will not have had the opportunity to take legal advice. The children’s guardian may not have had the opportunity to make enquiries and so the BPG questions the point of an early hearing in those circumstances. We have to ask ourselves what could realistically be achieved? A reminder, therefore, that urgent hearings will be listed in exceptional circumstances.

Parents to be advised, except in extremis and where it is unsafe to do so, of the proposed care plan.

When a local authority is going to issue at birth, a reminder that the application and supporting documents should be drafted in advance to prevent avoidable delay in the issue of proceedings.

26-week statutory limit

The 26-week time limit should apply to newborn babies wherever possible. Emphasis on the importance of working with health services with respect to newborn babies.

There is a recognition that is some cases where parents are receiving treatment for drug and alcohol use, or young first-time parents who are in mother and baby placements, proceedings may need to be extended.

Initial social worker’s statement

With urgent cases, the initial statement must set out the evidence of urgency and why the legal test for removal is met. A separate short statement is recommended for urgent cases with the full SWET to be completed and filed by the Case Management Hearing.

SWET (Social Work Evidence Template)

The SWET must contain details of pre-proceedings assessments with associated analysis and set out the support that has been provided to the child/family.

If the case was closed in the past to children’s services, the statement should explain why the case was closed. The statement should also include whether the Family Group Conference (FGC) has taken place, whether there were any previous proceedings and whether the child is, or was, accommodated under section 20. The statement must include the view of the Independent Reviewing Officer (IRO) which should be provided by the IRO directly. We often now see an email from the IRO included with the statement. The SWET template is to be revised and the new version is awaited.

Standard directions

Revised standard directions on issue to be introduced with the aim of making orders more accessible for all.

Interim care plans

A short-form interim care plan should be limited to the issues relevant to interim planning which include where the child shall live, proposed contact, any change to the school/nursery and the services to be provided to the child and family. The final care plan will remain in its current form, it is recognised that for children in the care of the local authority, the final care plan is the document which will be referred to at each review.

Urgent interim care order (ICO) hearings

If there is an urgent ICO hearing, the BPG encourages the making of case management directions that can progress the proceedings at the earliest opportunity, without any prejudice to the respondents. Issues should be identified at this stage and disclosure sought accordingly (police disclosure is an obvious example). The local authority shall commence assessments and if family members are identified and proposed as alternative carers, viability assessments should be undertaken without delay.

Case management hearings (CMH)/first hearings

At the first hearing both the identity and whereabouts of the father together with PR status must be addressed and accordingly consideration of whether DNA testing is required. The parties must also consider whether the FGC has taken place or now needs to be convened.

An important point is raised on consideration being given to disclosing limited documents to proposed alternative carers so they can engage with the assessment process on an informed basis. A number of practitioners have raised the importance of extended family members being properly appraised of the risks identified and so I am sure this recommendation will be welcomed.

Immigration issues should also be identified at this early stage. Any uncertainty about a child’s immigration status must be resolved. We are all reminded that failure to do so can have very serious consequences for a child who, at the age of 18 years, may be denied access to further education etc.

Advocates’ meetings

Templates for the advocates’ meeting agendas are included in the BPG (Appendix F4-6). Children’s solicitors in this area already routinely circulate agendas in advance of the meetings. Having looked at the templates, the proposed agenda for the advocates’ meeting prior to IRH is particularly helpful.

If all parties are agreed at the advocates’ meeting, this should be included in the case summary sent to the judge. The case summary will set out the parties’ positions, together with the proposed agreed orders. Again, in my experience, this is current practice in our area.

Orders

The precedent Case Management Order template will continue to be used for first hearings and thereafter the BPG recommends that short-form orders should be used for subsequent hearings – a huge relief for all those who had to regularly draft these lengthy orders! The short-form orders will include an annex detailing matters such as shared costs on expert instruction.

All orders to be drafted and circulated within 24-hours of the hearing. The focus is on all orders being concise and easy to read for all involved.

Part 25 applications/experts

The BPG again reminds us that expert assessment should only be directed when necessary. The report sets out that practice across the county has reverted to independent social workers (ISWs) and psychologists being routinely instructed. The BPG flags up that even when all parties are agreed that the instruction of an expert is appropriate, the court must still scrutinise the application and be satisfied the expert assessment is ‘necessary’ to determination of proceedings.

Helpfully, the BPG reminds us all of the expertise of the social worker and guardian which must be valued and respected. There is however recognition that some additional expertise is going to be required and, in those circumstances, the court may more readily find that the expert evidence is necessary. This includes, but is not limited to, DNA, drugs and alcohol testing and cognitive assessments. On non-accidental injury cases, forensic medical experts reporting on causation are likely to be considered necessary.

Judicial continuity

The BPG stresses the importance of judicial continuity and there should be one, or at most, two identified judges per case.

Case summary and position statement templates

We now have new case summary/position statement templates for all parties. The templates set out headings which each party should cover. These documents should be short and focussed. The templates are found at Appendix H.

The recommendation is that guardians shall file a position statement, rather than an initial analysis, at interim hearings.

Issues resolution hearing (IRH)

For the IRH to be effective, all parties need to have filed final evidence and the parents must attend the hearing. The position on threshold and welfare is to be crystallised.

The court shall determine any application for an expert to give oral evidence. The court shall determine which witnesses are to be called, time estimates for each witness and fix a final hearing date.

Fact-finding hearings

A fact-finding hearing should only deal with those issues which inform the ultimate welfare outcome for the child. It should be rare for more than six issues to be relevant. The guardian will be excused from fact-finding hearings

How many hearings?

Perhaps not surprisingly given the pressures on the family courts, the BPG finds there are too many hearings. Practitioners are required to consider consensual and court-approved applications which could be dealt with by a judge on paper or by email application.

Remote hearings

The BPG recommends consideration should be given to the greater use of video or telephone hearings following on from learning and experience during lockdown.

Bundles

FPR 2010, PD 27A must continue to be complied with. There is a shift in focus to what are the issues and the evidence required to prove or contest the same.

The parties should consider the principal issues necessary to resolve the proceedings, the relevant issues in dispute and the reading list for the judge. A clear route to navigate the bundle is essential. With electronic bundles, my own view is the bundle must be hyperlinked to assist the court.

Child’s birth certificate
The child’s birth certificate is to be included in the bundle and this reflects current practice in our area. I am sure we would all agree that including the child’s birth certificate is useful for clarity on names/spellings/PR and also prevents any delay if a placement application is subsequently lodged.

If the child is a foreign national, a copy of the biocentric page of their passport or ID document should be included in the bundle.

Supervision Orders

A further sub-group has been set up to consider supervision orders in more depth. It seems there a desire to give teeth to supervision orders and it will be interesting to follow how this develops. The BPG acknowledges that views on supervision orders are mixed:

‘224. There is however a broad consensus that the supervision order needs strengthening and that the order should continue to be an option but within a more robust framework.’

Care Orders at home

The BPG sets out serious concerns about care orders at home which are summarised as follows:

  1. Care orders should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings, we should consider instead child protection or child in need.
  2. A care order comes with the intrusive effect of state intervention with ongoing mandatory statutory interference in the lives of the parents and child who will remain looked-after. This means the child will continue to have an allocated social worker, child in care reviews etc. Parties should consider if a supervision order would be more appropriate.
  3. There should be exceptional reasons for a court to make a care order on the basis of a plan for a child to remain in the care of their parents.

Special Guardianship

There is a standalone report from the Public Law Working Group on Special Guardianship published on 15 June 2020 and the link is provided below:
https://www.judiciary.uk/wp-content/uploads/2020/06/PLWG-SGO-Final-Report-1.pdf

For a summary prepared by Fenners Chambers, please see:
https://fennerschambers.com/public-law-working-group-publishes-report-on-special-guardianship-orders/

In addition, the LFJB and Fenners chambers delivered a webinar on Special Guardianship on 28 January 2021 – please enquire with our clerks if you would like to be sent a copy.

Section 20

Firstly there is a recognition that the case of N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 2 WLR 713 has influenced decision-making around the appropriate use of section 20 placements.

The BPG recognises that section 20 is extremely broad in its application and range which covers orphans, abandoned or relinquished babies, unaccompanied refugee children, children with disabilities, adolescents with behavioural problems and homeless 16 and 17-year olds.

There is a new template for section 20 agreements introduced (Appendix G). There is no time limit on section 20 placements, but the purpose and duration shall be agreed at the outset and regularly reviewed. The focus is on independent legal advice for the parents and a regular review of the child’s progress in placement.

The separation of a newborn or young baby from its parents is scarcely appropriate under section 20.
Parents must understand that they can withdraw their consent at any time and such consent must not be given under duress (whether disguised or otherwise). The giving of consent is a positive act; silence, lack of objection or acquiescence is not valid consent.

Generally, longer-term provision of accommodation can be reviewed in line with looked-after children reviews, but short-term provision of accommodation may require more frequent reviews.

We are reminded that section 20 can also be legitimately used for respite, assessment/therapy/detoxification. As well as short periods of time to improve home conditions or for medical intervention e.g. surgery. Section 20 can include residential school and unaccompanied minors seeking asylum.

Deprivation of Liberty Safeguards (DOLS)

DOLS placements are where the child is subject to ‘continuous supervision and control and lack of freedom to leave’ continue to require specific court authorisation. The law on whether a parent can consent under section 20 continues to develop.

Pre-Proceedings

There is significant emphasis in the BPG on the steps local authorities take before issuing proceedings with an in-depth examination of all steps taken. From the very beginning of legal intervention, the legal planning meetings (when legal advice is obtained) are addressed including who should be present. Templates are provided for the letter before action and pre-proceedings meetings (Appendix E2-3).

It is unusual for the pre-proceedings period to be longer than 16 weeks and must be reviewed at six to eight weeks or the half-way point. Consideration should be given as to whether a parent needs an advocate or an interpreter.

There is an emphasis on the importance of keeping accurate records. Those records will set out what assessments have taken place and on the basis of what information, the assessment outcome together with what support and interventions offered to family, and the importance of regular reviews.

As we know, identifying and assessing family and friends at an early stage is key. The BPG acknowledges the importance for parents to have legal advice from an early stage. In fact, there is a recommendation that the legal aid agency consider extending non-means and non-merits tested legal aid available to parents pre-proceedings to enable their full participation and avoid public law proceedings. The template for the letter before action should be used and is drafted to ensure correspondence to parents avoids legal jargon (Appendix E3).

The BPG envisages full exploration by the local authority of what can be done to avoid court proceedings. It is acknowledged that where there is:

  • non-engagement or engagement but risks persist
  • the impact of the identified concerns has worsened
  • the child’s safety demands it when risks cannot be managed with child remaining in the parent’s care

It is highly likely that the matter will need to be put before the court.

FAMILY JUSTICE YOUNG PEOPLE’S BOARD (FJYPB)

Top tips are provided for working with children and young people and this is recommended reading this for all of us working in children law as it is really informative from the child’s perspective. The tips include how to work with brothers and sisters and children who have been affected by domestic abuse.

The focus of our work must be on the lived experience of the child and we must all ensure the child’s voice is heard throughout.

Eve Chowdhury
Barrister

FENNERS CHAMBERS
MARCH 2021

 

Extending Time to Register a Charge at Companies House: Tips and Pitfalls

Extending Time to Register a Charge at Companies House: Tips and Pitfalls

Extending Time to Register a Charge at Companies House: Tips and Pitfalls

If a company creates a charge, then section 859A of the Companies Act 2006 requires that the charge be registered at Companies House within 21 days. This much is known to most good conveyancers.

If the charge isn’t registered at Companies House within 21 days then it will not bind a creditor, a liquidator, or an administrator. In other words, the lender’s interest will be to a large extent unsecured. Not good news for the lender, and not good news for the borrower and their solicitor, who will probably be facing questions as to why the charge hasn’t been registered.

But what do you do if, for whatever reason, the charge has not been registered within 21 days? Thankfully, the Companies Act provides a way to remedy the situation. Section 859F gives the court the power to extend time if the court is satisfied:

(a) that the failure to deliver [the charge and supporting] documents—

  1. was accidental or due to inadvertence or to some other sufficient cause, or
  2. is not of a nature to prejudice the position of creditors or shareholders of the company, or

(b) that on other grounds it is just and equitable to grant relief.

An application is made to the Central London County Court, it is heard as part of a bulk list at 11am on a Monday, the extension is granted, and all should be well. Yes, in theory. Unfortunately, in reality the process of applying for an extension can easily turn into a trip down the rabbit hole, if (mixing animal metaphors) the ducks are not lined up properly from the outset. The reason for this is that many solicitors are not familiar with applications under section 859F, and (to my knowledge) no one has yet published a simple and straightforward guide to what needs to be done to get an application home. As such, while it is unusual for applications to be dismissed outright, applicants can find themselves getting adjourned again and again, as district judge after district judge finds something to criticise about the application.

In writing this article, I hope to give solicitors preparing applications some pointers as to what they should, and what they should not, be doing. So, here are the seven key rules of section 859F applications:

1. Make the application in the correct form

An application should be made by Part 8 claim form. It should be accompanied by a completed copy of Appendix A, which can be obtained in template form here (but see the warning about this template below). A judge will expect to see an application in the correct form, including Appendix A. If you do not have Appendix A, you can expect your application to be adjourned for Appendix A to be produced.

2. Make sure the form contains all the right information

This is a key point. For whatever reason, the approach of the judiciary to these applications can sometimes be an exemplification of legal pedantry. If your Claim Form or Appendix A contains errors, you can expect to have your application adjourned, in order for the errors to be rectified. If you are really unlucky, you will go back after your application has been adjourned once, to find that a different judge finds different errors, and adjourns you off for those to be corrected. The obvious solution is to get all the information right in the first place.

Here are two typical problems that can lead to an application being kicked into the long grass:

(A) Reference to incorrect sections of the Companies Act

Earlier, I linked to HMCTS’s website, which has a template Appendix A. If you’re completing a document based on HMCTS’s own template, you ought to be on pretty safe ground, right? Wrong. The Appendix A on the page to which I linked will in most cases be out-of-date. This is because it seeks an order extending time ‘pursuant to section 873(2) of the [Companies] Act’. However, the power to extend time is now found in section 859F, which replaced section 873 with effect from 6 April 2013. If your charge was dated prior to 6 April 2013 then you should still apply under section 873. However, if your charge is later than that, then you are applying under section 859F, and your applications should say so, and should not mention section 873 (the section which dare not speak its name, so far as most applications are concerned). If you do say that you are applying under section 873 when you should be applying under section 859F, then the likely outcome will be an adjournment for you to amend this.

Similarly, the template Appendix A refers to ‘the time for registration in the manner required by Section [860 or 862]’. This is again out-of-date. If you are seeking an extension of time to register a charge, then it is neither section 860 nor section 862 that you should refer to here, but rather section 859A. You can still use the Appendix A in the link, but make sure to correct these errors first.

(B) Getting names wrong

Your application will certainly need to name the company which granted the charge, and the lender in whose favour the charge was granted. Get their names right! By this, I mean that if the company granting the charge is called John Smith Barrister Limited, then call it that. Don’t call it ‘John Smith Barrister’. Don’t call it ‘John Smith Barrister Ltd’ (Ltd and Limited are different words, and you need to get them the right way around in an application of this type). Don’t feel that you need to refer to the directors or add them as parties (an application in which the Claimant was referred to as ‘John Smith Barrister Limited with John Smith acting as director’ did not find favour with the judge). Similarly, you need to get the identity of the lender right. A lot of mortgage lenders have trading names which are different from their actual names. A lot of applications are adjourned for amendment because the Claim Form and Appendix A use the trading name, not the actual name. For example, if Big Mortgage Lender Limited trades as Cheap Mortgages, then don’t just put ‘Cheap Mortgages’ in the Claim Form or Appendix A. Put ‘Big Mortgage Lender Limited, trading as Cheap Mortgages’.

3. Explain why you need an extension of time

Earlier, I set out the statutory test that the court will apply. While this is a broad test, the court will most commonly be assessing whether the failure to get the charge registered on time ‘was accidental or due to inadvertence or to some other sufficient cause’. Usually, it will be. But you need to show the court why this test is met. This requires a witness statement, usually from the conveyancing solicitor, to explain what went wrong. Such a witness statement should explain exactly what went wrong. It should not just repeat the statutory formula – doing this will lead to you being adjourned in order to file further evidence. Your witness statement should explain precisely why the documents were not registered within 21 days. This requires openness and honesty. If the conveyancer simply overlooked the requirement because they were busy, or because they did not know that this had to be done, then say so. Don’t try to cover up mistakes; the section 859F process exists because we all make mistakes, and this is a quick way to correct them.

4. Exhibit the charge

An application should be accompanied by a witness statement exhibiting a copy of the charge. Usually, this can be dealt with as part of the statement that explains why you need an extension of time. But in any case, you need a statement exhibiting a copy of the charge. If you don’t have this, a judge is likely to adjourn your application off for such a statement to be produced.

5. Have the original charge at the hearing

The first ever time I went along on an application of this kind, I did not have the original charge with me. I didn’t know that I needed it and neither did my instructing solicitors. At 11am I was called into court, along with about eleven other barristers, all of whom were making similar applications. I was someway down the list. As the barristers above me in the list made their applications, I realised that sooner or later every one of them said something like ‘here is the original charge, sir’, and handed it up to the district judge. Unsurprisingly, when my turn came and I did not have it, I was adjourned off for it to be produced.

The moral of this story is that judges want to see the original charge. They want to physically hold it, compare it to the copy that has been exhibited with the application, and ensure that all is above board. I have even watched as a judge ran his finger over the document that had been handed to him, before saying that he was not satisfied that it was genuinely the original charge, because he could not feel the indentation of the pen on the signatures! So, make sure that whoever is going to court has the original charge in their possession. If the original charge no longer exists, then the best alternative is to produce a certified copy, with a witness statement explaining why the original cannot be produced.

6. Prove that the Company is solvent

If you want your application granted without hiccup, then you need evidence that the company that granted the charge is solvent. This can be proved by obtaining a statement signed by a director, confirming that:

(a) No winding-up order has been made, nor has any resolution for winding-up of the Company been passed.

(b) No winding-up petition is pending in respect of the Company.

(c) No notice of a resolution to wind up the Company has been given.

(d) The Company is continuing to carry on business.

(e) There are no unsatisfied judgments against the Company, and no creditor is in a position to obtain a judgment against the Company.

Not too difficult, but if you don’t confirm these matters by a statement, then your application is likely to be adjourned off. Note that your evidence of solvency should be dated within the 14 days prior to the hearing, and that if you are adjourned off for any reason, then you should obtain fresh evidence of solvency, which should itself be dated no more than 14 days prior to the new hearing.

7. Give counsel express authority to amend

As I sat at the back of court one summer’s day, waiting for my case to be called on, an application came before the judge which was crying out to be allowed. The only problem was that Appendix A referred to the wrong section of the Companies Act (see above). Personally, I don’t see why this is a problem – if an application asks the court to exercise a power that it demonstrably has, why should it matter that the application alludes to the wrong section? Unfortunately, the judge did not see it that way. She wanted it amended. She asked counsel if he had express authority to amend. ‘Not express authority, no’, came the reply. ‘Oh dear,’ said the judge, ‘well, I’ll put you to the bottom of the list, and if you can get express authority before lunch then I’ll allow you to amend and grant the application. Otherwise, I’m afraid that you’ll have to go off until November’.

Whether the barrister ever got his order, or whether he had to return in November, I don’t know. But this illustrates an important point: if your application contains one minor drafting error, then it can be fixed by amendment, which can be made at court if necessary. But if you are sending counsel, then you need to make sure that they have the power to amend at court. Otherwise, you could be looking at an adjournment. So why not stick something like ‘counsel is authorised to amend the application, should it be deemed necessary’ at the end of the instructions?

Liam Varnam

FENNERS CHAMBERS

Liam Varnam (2007 call) has extensive experience of company and property matters, including applications under s. 859F of the Companies Act. Together with the other members of Fenners Chambers’ property and commercial teams, he accepts instructions across the whole range of company law and property matters.

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