On 5th May 2022, the President of the Family Division approved new guidance for Judges and Magistrates concerning the use of Fact-Finding Hearings in Private Law Children Act cases in the Family Court.
The short guidance is an essential read for all practitioners and people who find themselves in Private Law Children Act cases. It provides an insight into the latest thinking from the Judiciary’s top brass as to how Judges and Magistrates should handle their cases.
You can read the full guidance here: https://www.judiciary.uk/announcements/fact-finding-hearings-and-domestic-abuse-in-private-law-children-proceedings-guidance-for-judges-and-magistrates/
From reading the guidance and from recent experience, it seems that Judges and Magistrates are being encouraged to be more robust with how they manage cases, and in particular those cases where one parent may be seeking a Fact-Finding Hearing because of allegations of domestic abuse.
The new guidance tells Judges that they should “cease the opportunity to probe” and “take ownership of the case”. At the very first court hearing, they have been asked to “identify the real issues in the case” and further that “there is a time and place to determine allegations of domestic abuse, but it may not be in your court. Unless it will be relevant to, and necessary for, your decision regarding the welfare of the child, do not allow the Court to litigate such allegations”.
Judges have also been told to check the initial court application forms to assess whether or not they contain sufficient detail to avoid calling for further evidence or documents.
For practitioners, I would say that this translates to “front loading” an application as far as is possible, being prepared for an increased level of scrutiny where you seek a Fact-Finding Hearing. Where there are allegations of domestic abuse (or other safeguarding concerns), these should be set out clearly in the C1A Form accompanying any application, and it should be made clear how an allegation relates to any decision regarding the welfare of the child.
Whilst in many cases this front loading will be possible, there is a risk that the new robust approach may prejudice those cases where the parties have come to the court on an urgent basis. It is not unusual in those urgent cases for the paperwork to not be as thorough for obvious reasons.
The call by the “top brass” to restrict allegations of abuse to those that are likely to be relevant to the welfare of the child is not new. However, it risks domestic abuse being dismissed by a Judge.
It may be necessary to remind the Court that a child can be harmed in many ways by having grown up in an abusive household, as set out clearly in the Court of Appeal case of Re: H-N (paragraph 32 of the Judgment).
It feels as though there is a tension in the Family Courts between, on the one hand, the progress that has been made in recognising different forms of domestic abuse with the enactment of the Domestic Abuse Act and decisions of the court in the likes of re: H-N (recognising the harm and impact of controlling and coercive behaviour); and on the other hand, we have an under-resourced and overworked judiciary and Judges under pressure to reduce the court workload.
When those tensions meet, there will be instances where Judges make poor case management decisions, and we should ensure that we are prepared to challenge their decisions.