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- The parties had married in 2011 but separated a year later, when the mother was pregnant with their child. The father appealed against findings of fact that he had (i) raped the mother twice whilst she was in bed with their young child, (ii) emotionally abused the mother, and (iii) threatened to abduct the child. The appeal focused on what was said to be the failure by the judge to consider the allegations in their totality. Criticism was made of her decision not to consider and weigh the evidence in respect of, or to balance in her decision-making, the evidence relating to a number of core allegations made by the respondent. Complaint was made that she had compartmentalised the evidence and that she had failed to consider properly the appellant's case that the allegations against him had been fabricated. Roberts J reached the conclusion that the judge's findings could not stand, not necessarily because she was wrong, but because of the manner in which she appeared to have reached those conclusions. The reasoning was insufficient to explain how the judge had conducted her assessment of credibility and which matters she had, or had not, weighed in the balance when reaching her conclusions. In a case where one party was alleging that allegations had been fabricated as part of a course of conduct designed to marginalise a parent from the life of a child of the family, it was incumbent on the fact-finder to explain carefully why that case was rejected. That had not happened in this case. The appellant had been left with the impression that his case had not received the careful consideration which it deserved. The appeal was allowed, the findings set aside, and the matter would be remitted for an early rehearing. Judgment, 05/04/2021, free
- The Court of Appeal (the President of the Family Division, King LJ and Holroyde LJ) was concerned with four appeals in ongoing Children Act 1989 proceedings involving allegations of domestic abuse by one parent against the other. The decisions on the appeals, the court explained, turned on long-established principles of fairness or the ordinary approach to judicial fact-finding, and none purported to establish new law, or to establish any legally binding precedent. However, the court noted, at least 40% of private law children cases now involved allegations of domestic abuse, about 22,000 cases each year, and so the court took the opportunity to give more general guidance about such matters, such as the proper approach to deciding whether a fact-finding hearing was necessary, and whether, where domestic abuse was alleged in proceedings affecting the welfare of children, the focus should in some cases be on a pattern of behaviour rather than specific incidents. It noted that there had been effective unanimity in submissions to the court that the value of Scott Schedules in domestic abuse cases had declined to the extent that they were now a potential barrier to fairness and good process, rather than an aid. Reducing the focus to a limited number of events created the risk of the court losing the vantage point needed to consider whether there had been an overall pattern of coercive and controlling behaviour. The appeals in Re B-B and Re T were allowed, and the matters remitted to different judges. The appeal in Re H-N was allowed and the matter was remitted to the Designated Family Judge at the Central Family Court for further case management. The appeal in Re H was dismissed. Judgment, 31/03/2021, free
- An appeal from an order for the summary return of a three-year-old child to the USA. The mother was British and alleged an abusive relationship. The father was American and denied the allegations. The mother asserted that, after having found that her allegations were of a nature to engage Art 13(b) of the 1980 Hague Convention, the judge had been wrong to grant the father's application. She also issued an application asking the court to admit further evidence. Peter Jackson LJ found that the situation portrayed in letters from the mother's GP was markedly more severe than that previously described to the extent of being capable of influencing the outcome, and he would therefore admit the evidence. The judge had directed himself meticulously and he had methodically reviewed all the evidence that was before him. However, the appeal had to be determined in the light of the further evidence concerning the mother's mental health and family support, which showed an escalation in self-harming behaviour to the point where she could not currently live alone with the child in England, let alone elsewhere. Haddon-Cave and Elisabeth Laing LJJ agreed. The return order was set aside and the father's summons under the Convention was remitted for rehearing by the judge on an expedited basis. Judgment, 19/03/2021, free
- Knowles J had invited the father to provide written submissions as to whether the terms of an extended civil restraint order (ECRO) to control his litigation conduct, due to expire in November 2020, should be extended. The children in question were now aged 14 and 20. Since the making of the ECRO the father had made seven applications which had fallen within the remit of the ECRO, all of which had been refused, three of them having been totally without merit. Knowles J asked herself whether there was good reason to apprehend persistent vexatiousness by the father in the future, and decided that there was. The ECRO would be extended to November 2022. Judgment, 04/01/2021, free
- The child arrangements order being appealed by the mother had been made by consent at the FHDRA, and had provided for the three children to live with her and spend time with the father. No reasons were given by the magistrates, and there were no references in the order to allegations of domestic abuse, safeguarding checks or to Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm, Family Procedure Rules 2010. The mother's grounds of appeal also asserted that a report supporting the terms of the order had been made without observing the father with the children and without the author having given proper consideration to the allegations of domestic violence. HHJ Cove found that the magistrates' decision was plainly wrong. No reasons had been given, the court had not had regard to PD 12J, the safeguarding checks were incomplete, and there had been no analysis of whether the consent order should be made nor of the risk of harm to the children. The order was set aside. Judgment, 18/12/2020, free
- The parents had lived together for twelve years. During previous proceedings regarding contact with their two children, the mother had alleged domestic abuse on the father's part, both towards her and towards a subsequent partner. Following a conviction for assault on a third partner, he applied to enforce an order for contact, in response to which the mother raised the issue of his violent behaviour towards multiple partners. The district judge found that there had been domestic abuse, but later recused herself after realising that her son and the mother were members of the same sports club. The judge then agreed to re-open the district judge's earlier findings of fact on the basis of apparent bias. The mother appealed with regard to the recusal and the decision to re-open the findings. Peter Jackson LJ found that the judge's decision had been both wrong and unfair. The district judge had not discovered that her son and the mother knew each other until months after her findings of fact had been made. King and Phillips LJJ agreed. The father's application was dismissed, and the proceedings were remitted for the welfare decision to be taken on the basis of the district judge's findings of fact by another circuit judge. Judgment, 17/12/2020, free
- The mother's appeal against a finding, made at a fact-finding hearing in the course of Children Act proceedings, that she had assaulted the father just before they separated. She appealed on the grounds that the judge had been in error regarding the photographs the father had taken of his injuries. Judd J DBE found that the date stamps showed that the photographs had been taken on a date inconsistent with the father's account of events, which would have undermined his reliability and credibility with regard to the entire incident. The finding of the Recorder was thus set aside. However, orders had subsequently been made in the Children Act proceedings, and Judd J DBE did not think it desirable or proportionate for the matter to be remitted for rehearing, so it would rest as it was. Judgment, 28/11/2020, free
- The father appealed against an order that he should only have indirect contact with his children (aged 8 and 7), that they should live with their mother, and that he should excluded from making decisions with respect to their education and health. Judd J DBE concluded that this appeal should be allowed. The recommendation of the Cafcass officer, as accepted by the judge, had been based upon the officer's view that the father had engaged in coercively controlling and abusive behaviour, but these findings had not formally been sought and there had not been a fact-finding hearing. The Cafcass officer had not observed the children with their father. If the recorder had weighed in the balance the harm that could be caused to the children by the immediate loss of their relationship with the father, it was not apparent from the judgment. The case was remitted for rehearing, and would have to be listed for another FHDRA, where questions such as separate representation for the children, the ambit of any fact-finding hearing, and whether there should be a psychological assessment of the father would be considered. Judgment, 25/09/2020, free
- A male child had resulted from a surrogacy arrangement. The wife had then arranged a further surrogacy without the husband's knowledge, and they had subsequently separated. The husband and wife jointly sought a parental order for the first child, and the father sought a child arrangements order with regard to him. The guardian supported the father's application. The wife sought a non-molestation order against the husband, as well as findings of fact that she had been the subject of financial, coercive and controlling abuse during their relationship. Keehan J did not place any great weight on the views and opinions of the social worker involved, who had omitted a number of a significant factors from her assessments in the case, but he gave considerable weight to the recommendations of the guardian. He found that it was in the son's welfare best interests to live with his father, and made a child arrangements order to that effect. He made none of the findings of fact sought by the mother against the father. Judgment, 25/09/2020, free
- In wardship proceedings, the mother alleged that she and the children (aged 8, 4 and 3) had been victims of transnational abandonment. This was denied by the father, whose case was that the parties had made a consensual decision to relocate as family to Pakistan. He contended that the courts of England and Wales did not have jurisdiction in respect of the children; alternatively, that they should not exercise any jurisdiction because welfare decisions could more conveniently be made in Pakistan. Circumstances meant that the case had to be adjourned, but Mr Richard Harrison QC, sitting as a deputy High Court judge, considered the situation as it stood to be one in which the children were likely to be suffering from emotional harm. It was not tolerable for them to continue to be separated from their parents. It was clear to him that the essence of the mother's case was likely to be correct. The removal of the children to Pakistan had been procured on the basis of a deception, and was thus in breach of the mother's rights of custody, and a wrongful removal for the purposes of Article 10 of Brussels IIa. Having been the primary carer throughout the children's lives, the mother was the person best placed to meet the children's emotional needs. He ordered their immediate return to this jurisdiction. Judgment, 25/09/2020, free