Findings of abuse and assault made against the father of three children were unsafe, the Court of Appeal ruled.
The children – twin boys aged nine and their 12-year-old sister – saw their father regularly following the breakdown of the parents’ marriage in 2017, regularly staying overnight at his home. But then arguments between the parents began and the 12 year-old refused to continue seeing her father. In June 2019 the father threatened legal proceedings and the mother began to restrict the time the twins spent with the father to daytime visits.
The father applied for a child arrangements order: these specify living arrangements for children or make changes to existing arrangements. He argued that the rapid approach of Christmas meant there was no time for the former couple to attend a mediation information and assessment meeting (MIAM), which would have allowed them to explore the potential for formal negotiation. Attendance at MIAM is normally obligatory when launching such proceedings in a family court.
In his application, the father claimed the mother had alienated him from the children and sought to formalise the previous arrangements for ‘contact’ (time spent with them). The mother responded with some allegations of domestic violence against the father but did not object to a degree of limited, unsupervised contact with him.
By this point, Cafcass had become involved in the case. The Children and Family Court Advisory and Support Service is routinely involved in family disputes involving children in order to try and ensure the children’s best interests are protected. They issued a ‘safeguarding letter’ – a letter to the court outlining any apparent welfare issues within the family. This contained a number of more serious allegations about the father, including sexual assault and coercive control, and urged the court to hold a ‘fact-finding hearing’. As the name suggests, these are special court hearings designed to consider disputed claims and try to establish the facts of a case.
At the hearing in the case – the First Hearing and Dispute Resolution Appointment or FHDRA – the judge accepted the Cafcass recommendation and ordered that a fact-finding hearing should take place. In the meantime, the father would only have supervised contact during the daytime.
The fact-finding hearing was delayed by the covid pandemic. When it eventually took place, over two days, the Judge considered the allegations of sexual assault and controlling behaviour, along with other claims of inappropriate behaviour toward the children. District Judge Capon concluded that all but two of the claims were factual and ruled the children should only have monthly “indirect contact” with their father – i.e. via email, phone or text message.
The father appealed, but a family court circuit judge ruled against him. However, the father was more successful at the Court of Appeal in London, where his case was considered by a panel of judges that included both Family Division President Sir Andrew McFarlane and Sir Geoffrey Vos who, as Master of the Rolls, is the most senior civil judge in England and Wales.
In the ruling, Sir Geoffrey explained the father’s argument:
“…the father submits that the judge ought to have considered his case that the mother had alienated his children, and that the factual findings that the judge reached as to [sexual assault], coercive and controlling behaviour, and physical abuse of the children are unsound and failed to take into account the bigger picture.”
The Court of Appeal was convinced and overturned the earlier ruling. The Judges declared that the finding of fact concerning sexual assault was:
“…unsafe because the judge failed to look at the matter in the round. He focused too heavily on the question of whether the mother had had a conversation complaining about the father’s conduct, rather than considering all the available evidence including the mother’s untrue assertion …that she had reported a version of the incident to the family doctor.”
According to Sir Geoffrey:
“The safeguarding letter [issued by Cafcass], which was available shortly before the FHDRA, recorded that the mother had, in 2018, made allegations of “[sexual assault], financial, physical, mental and controlling behaviours” during the marriage, but did not wish to progress the matters with the police due to the “stress and fear” of doing so. No reference was made in the safeguarding letter to an [earlier] email, which the mother had sent to the detective dealing with the matter. In that email, the mother, whilst making allegations of financial impropriety, had emphasised the importance to the children of their relationship with their father and said that she would not prevent it unless the children were distressed or refused to see him.”
In addition, Sir Geoffrey continued:
“… the judge ought to have considered all the allegations in the context of the contention that most fundamentally affected the question of future contact, namely whether the father was demonstrating coercive and controlling behaviour affecting the children’s welfare after the separation.”
The Court of Appeal referred back to the couple’s failure to hold a MIAM, saying this was “unfortunate”.
“Had they done so, the issues between the father and mother that concerned the logistics of the father’s contact might have been speedily resolved before the inevitable trauma caused to the family by the fact-finding process. The mother had agreed to unsupervised contact and did not, at that stage, see the alleged [sexual assault] or generalised allegations of controlling behaviour, bullying and physical abuse of the children as central to the resolution of the issues between them.”
The case should be sent back to the lower courts, the Appeal Court concluded, for a decision on whether not to hold a further fact-finding hearing.
The Master of the Rolls urged the former couple to make fresh efforts to reach a compromise in the best interests of their children.
Read the full ruling here.
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