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 country 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

 

Child Contact and the Coronavirus

Child Contact and the Coronavirus

Child Contact and the Coronavirus

Contact between children and parents can be a contentious issue at the best of times and the current Government lockdown has only sought to confuse the issue. It is hoped that the information below will help to answer the most common questions parents are asking themselves and their legal advisors

Please remember that all situations are unique and not every question has an immediately clear answer. The Family Team at Fenners Chambers are continuing to operate as usual on a remote basis: we are happy to answer any questions and attend conferences; we can represent clients at remote hearings by video conference or telephone; we can offer alternative dispute resolution for swift and effective solutions. All members of the team are happy to work via telephone, Skype for Business, Zoom or Microsoft Teams.

Please contact the clerks at clerks@fennerschambers.com or 01223 368 761 for more information.


 

Frequently Asked Questions

We have an agreement or order in place which involves my child moving between two households to spend time with each of their parents. Will I be in trouble if I take my children to contact?

No: the government guidance on staying at home specifically excludes the movement of children, under the age of 18, between their parents’ homes. This is subject to the usual caveats about individuals and their families needing to self-isolate if they are displaying symptoms associated with Covid-19.

Are there any circumstances when direct contact should not take place?

Yes: The President of the Family Division issued guidance on 24th March 2020 which set out that it is for those with parental responsibility to decide whether a child should be moved after making ‘a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other’.

This means that it will be for those with parental responsibility to agree whether a child should be moved between homes taking into account the circumstances of those homes against the government guidance and whether movement can happen safely.

Those with parental responsibility can agree any vary any existing contact arrangements and it is a good idea to be sure that this agreement is recorded by an email or text message. Any agreed variation should last for the period of the lockdown and reflect the current restrictions on movement.

If it is agreed that moving the child between households is not safe, what contact should take place?

The President of the Family Division has stated that it is expected that if the ‘letter’ of a contact arrangements cannot be followed then the ‘spirit’ of that arrangement should take place in a way which is safe and in the best interests of the child. In a situation where direct contact could not take place, then the parties should look at alternative indirect contact arrangements for example by video (Skype/Facetime/WhatsApp) or by telephone in order to ‘establish and maintain contact between the child and the other parent’.

What if me and the other person(s) with parental responsibility cannot agree whether the child should be moved or not?

If parents cannot agree then one parent (or person with parental responsibility) may unilaterally decide that the child should not go to contact. If this decision is later challenged through an application to enforce the order, the ‘the court is likely to look at whether each parent acted reasonably and sensibly in light of the official advice’. In short, if a parent uses the Covid-19 as an excuse to stop contact without any justification relating to the condition of their own household or the household of the other parent, then this is unlikely to be deemed a ‘reasonable excuse’ in enforcement proceedings.

In these situations, it is expected that alternative contact arrangements (i.e. video call/telephone) will take place.

My child’s contact is supervised/supported by a family member/friend – can this contact still go ahead?

If the family member or friend lives in the same household as the parent having the contact, then there is no reason contact cannot go ahead.

The exception to the government guidance on social distancing does not apply to the movement of contact supervisors therefore if the contact supervisor does not live in the same household as the parent having contact the parents may have to look at an alternative supervisor who lives with that parent or alternative contact arrangements such as video calling or telephone.

My child’s contact normally takes place in a contact centre, can this contact still take place?

The first thing to do is to check whether the contact centre remains open and what arrangements they are putting in place.

If the contact centre is closed, is there another contact centre, reasonably accessible to both parents, which is open?

If the contact centre is closed, and there is no reasonable alternative, the general position will be that contact cannot take place on direct basis as the court has determined that a third party is needed to supervise/support the contact. It will also be necessary to investigate whether video/telephone contact can take place safely for both the child and the parent facilitating this, for example if there is a history of domestic abuse.

There may be some limited circumstances where direct contact could take place when a contact centre is unavailable, however this would depend on the circumstances of the individuals involved and it is always recommended that you take legal advice before taking such steps.

 

Joshua Walters
Fenners Family Group

Re P (A Child: Remote Hearing) [2020] EWFC 32

Re P (A Child: Remote Hearing) [2020] EWFC 32

Re P (A Child: Remote Hearing) [2020] EWFC 32

The family courts, and professionals who work in them, have adapted swiftly to the ever-changing situation presented by the Covid-19 pandemic with manycases being heard remotely. However, cases often turn on a Judge’s assessment of a witness’ behaviour in court and this level of human connection has proven very difficult to achieve remotely. With the difficulties of remote hearings balanced against the need to avoid delay for the children concerned, the question is posed, should final hearings be conducted remotely?

The President of the Family Division, Sir Andrew McFarlane has set out his stancein Re P (A Child: Remote Hearing) [2020] EWFC 32 handed down in the High Court on 16 April 2020.

The Decision: A Snapshot

Sir Andrew McFarlane stated it was “very clear that this hearing has to be adjourned…it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely”. The main body of the decision is found at paragraph 26 of the Judgment.

  • “We must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved], part of which is to ensure that parties are ‘on an equal footing’ In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.” [para 23].
  • A judge’s ability to cope with cross examination and assimilation of the detailed evidence from the e-bundle and witnesses appearing over Skype is only one part of the judicial function.
  • The judge needs to see all the parties in the case when they are in the courtroom, to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting.
  • It is possible over Skype to keep the postage stamp image of any particular attendee at the hearing it is a very poor substitute to seeing that person fully present before the court.
  • Remote hearings assume that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on.
  • To contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment.
  • A remote hearing for a final hearing of this sort would not allow effective participation for the parent and effective engagement either by the parent with the court or the court with the parent.
  • There is a significant risk that the process as a whole would not be fair.
  • A prerequisite for the mother to take an effective part in a fair process is that the mother needs a real time ability to instruct her legal team throughout the hearing not just by phone call at the end of each piece of evidence.
  • This is irrespective of theparties agreement or opposition to a remote hearing [para 29]

 

Background

As part of ongoing care proceedings relating to a seven-year-old girl, a fifteen-dayfinal hearing had been listed. It came to the President’s attention that the hearing was due to take place remotely and he asked the Judge concerned to adjourn the matter. Parties expressed concern and therefore the matter was listed for a decision on this issue to be made. The Local Authority alleges significant harm caused by “fabricated or induced illness –FII”. There are “sixteen or so” [para 14] witnesses to give evidence including three experts. The issues are fully contested. There had been one previous attempt at a final hearingwhich had to be aborted, but the child was aware that her long-term care arrangements were to be decided imminently. An electric bundle had been compiled and the hearing was set to be conducted over the Skype for Business platform.

Parties’ Positions

The crux of the debate was whether or not the child’s welfare demanded the hearing to be conducted remotely, in order for her to have a decision sooner rather than later. As is so commonly the case, these interests must be balanced with the ability of the parents to have a fair opportunity to present their case. With the introduction of the Covid-19 pandemic and the technological element it brings, this balance has become harder to equate.

The mother was due to take part in the process alone, at home, and was intending to buy a wi-fi dongle to improve internet access. There was discussion of whether the mother could go to a neutral venue and be assisted by an individual from the solicitors’ firm to assist her involvement. However, there was concern that shemay have contracted Covid-19 and Sir Andrew held, “finding a member of the solicitors staffor asking a member of the solicitors staff to sit in a room with someone who thinks that they have had or are getting over Covid-19 is more than can be properly asked of anyone in that position” [para 20].

The Mother had not objected initially to the hearing being held remotely, as in the “early days following the lockdown the profession was “feeling its way” (sic) and there was an understanding that many family hearings would be undertaken remotely”. Upon further thought, it was considered by the Mother’s team that “this is a case that falls outside the category of hearings that could be contemplated as being able to be conducted over a remote platform in a manner that meets the requirements of fairness and justice” [para 19].

The Local Authority, Fatherand Guardian sought for the hearing to go ahead remotely. They argued that :

  • the allegations against the Mother had been “well-rehearsed in the documents…and [were] well known to the mother” [para 14].
  • the child was “already suffering, on their view, significant emotional harm by being held in limbo…
  • “technical matters” should not be a “reason of itself for the hearing to be adjourned” [para 18].

In the alternative the Local Authority and Guardian urged the court to hear the professional witnesses now with the mother’s evidence being adjourned until later.

The role of FII in this case

The President formed a view at “first blush” [para 11] that this case was not suitable for a remote hearing, and it was a “surprise” [para 13] that it had been listed assuch. This was due to the main issue of the case being FII. He held that FII is “a particular form of child abuse which requires exquisite sensitivity and skill on thepart of the court”[para 11]. He later refers to the paediatric expert witness’ description of the case as “an extremely complicated case” and the task of investigating FII as being “incredibly challenging” [para 12]. As referred to in the introduction ofthis article, Sir Andrew McFarlane held that the judge’s assessment of the human character is a “crucial element in the judge’s analysis”. This includes “for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting” [para 12].

Factors to consider in future cases

The Presidentstresses that “the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance”. At paragraph 24, he identifies a range of important factors that parties and judges should consider:

  • avoiding delay;
  • resolving issues for the child;
  • ensuring proceedings are forensically sound, fair, just and proportionate;
  • the seriousness of the decision;
  • nature of local facilities;
  • availability of technology;
  • personalities and expectations of the key family members, and
  • the experience of the judge/magistrates in remote working.

 

Impact

This decision acts as a precedent forthose involved in similar cases, those with FII and a significant number of witnesses. It also assists Judges and practitioners with the key factors to be considered when decidingwhether or not toconduct a hearing remotely. This decision is a strong indication that cases of this level of complexity should not be being heard remotely, and that doing so would be risking the fairness of the whole process. How many, and what other formsof harmwill be included in this category, is yet to be seen.

Ellena Forman
Fenners Chambers
21 April 2020