Private Law
January 2022

Introduction: On 20th August 2021, the mother's application for permission to appeal was granted by Lieven J in relation to four grounds of appeal. A hearing took place in front of Mrs Justice Arbuthnot on 27th and 28th October 2021.

The substantive appeal of the mother was against parts of a Child Arrangements Order made by HHJ Williscroft conducting a Dispute Resolution Appointment ("DRA") on 4th June 2021 in relation to proceedings brought by the father to enable him to have contact in a supervised setting with the mother and father's child, D, who was born in 2018.

Arbuthnot J allowed the appeal on the basis that the judge had not given sufficient reasons when dealing with the requirements of PD12J. She also considered the courts power to direct who should pay the costs of contact supervision and how the court should allocate responsibility when there had been findings of domestic abuse against the person seeking contact.

Background: The parents separated in July 2018. The father was having supervised contact in 2019 by agreement on alternative Sunday’s. He applied for a CAO in June 2019. Contact was ordered in a contact centre. The father was paying the cost of the two hours contact a week in the contact centre. The father applied to change the arrangements including the costs as he was unemployed, and the mother had an income. In May 2020 it was ordered that the costs should be shared equally. Direct contact was in fact suspended by the effects of lockdown from March 2020 to September 2020, when it resumed. The fact-finding took place in November 2020 before HHJ Williscroft and the mother's allegations were proved. The mother established that she had been the victim of domestic abuse including rape, physical assault and coercive and controlling behaviour by the father during their marriage. Direct contact stopped in December 2020 because of the second lockdown.

After the fact-finding hearing in November 2020, HH J Williscroft attempted to hold a DRA in March 2021 but the case was not heard until 4th June 2021. She ordered that the direct contact resume at the centre (subject to a risk assessment) on the same terms as to payment and directed a psychological assessment of the father. Indirect contact was to occur weekly. The mother appealed the decision to order the resumption of direct contact, the refusal to stop the indirect contact and the direction that she should pay the costs. Lieven J gave permission to appeal but refused to discharge the indirect contact order pending appeal.

Counsel for the mother relied on the following four grounds of appeal [28-32]:

Ground 1: the Judge was wrong to order that the mother, a victim of rape, share the costs of supervised contact with her rapist, the father.

Ground 2: the law as presently interpreted by the family courts in permitting a rape victim to be ordered to pay a rapist's contact costs was in breach of the mother's Articles 8 and 14 Convention rights.

Ground 3: the Judge was wrong to order direct contact and did not apply paragraph 36 of Practice Direction 12J.

Ground 4: the Judge was wrong in failing to apply paragraph 40 of PD 12J and to explain by way of reference to the welfare checklist and the factors in paragraphs 36 and 37 or otherwise why she took the view that domestic abuse having been proven, contact with the perpetrator would not expose the child to the risk of harm and was beneficial for the child.

Permission to appeal: In her decision giving the mother permission to appeal, Lieven J said "the case raises issues of public importance as there is no case law on contact costs; and whether a victim of domestic abuse should contribute to the costs of maintaining the child's contact with the perpetrator of that abuse. The mother's arguments are arguable". [33]

Arbuthnot J identified 3 questions. First, whether in principle a court has the power to order that a party pay for contact under section 11(7) of the 1989 Act. Second, whether the Judge was wrong to order direct contact after the finding of abuse and the second was whether she failed to consider the welfare checklist and PD12J appropriately. Third, the question for the court is whether a victim of rape or domestic abuse should share the payment of the costs of contact with their child with the perpetrator of that rape or domestic abuse.

Q1: Arbuthnot J rejected the mother's argument that there was no power to order a party to pay the costs of contact. She held that s11(7) Children Act 1989 gives the court the power to make such a direction [55-57].

Q2: Arbuthnot J concluded [83] that HHJ Williscroft had allowed herself insufficient time (it was a 1-hour listing) to properly consider and explain how she had applied the relevant parts of PD12J and in particular relate them to the findings of harm made at the fact-finding. The Judge should have considered the emotional safety of the mother in this case before ordering the resumption of direct contact [107]. In essence the judgment did not disclose the necessary detailed reasoning which PD12J requires to justify reinstating direct contact at the DRA [103, 110-111]

Arbuthnot J rejected the argument that HHJ Williscroft was wrong to allow indirect contact to continue. There was an established relationship between the father and the child and the impact of connecting a Facetime call was different to attending a contact centre [112].

Q3: Although it was argued that as matter of principle a victim of abuse should never be ordered to pay the costs of the child having contact with the abuser and that doing so continued the abuse and coercive control, Arbuthnot J's conclusion on the third question was more pragmatic. Although Arbuthnot J could not envisage a situation where a court would order the victim to share the costs of contact, [130], she was wary of giving guidance which might be too narrow to deal justly with the facts in another case. Her guidance in relation to cases where abuse has been found or admitted was the following:

"131. First, there must be a very strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser.

132. Second, if, wholly exceptionally, the court has to consider this, the matters a court might want to take into account could include the following:

a. The welfare checklist including the age of the child
b. The factors in PD12J.
c. The nature of the abuse proved or admitted, and the parties' conduct that the court considers relevant
d. The impact of the abuse on the caregiver with consideration as to whether any payment would give rise to financial control
e. The extent of the relationship between the child and the abusive party
f. The nature of the section 8 order made
g. The parties' financial resources
h. The cost of the contact
i. Whether, if the contact is in the best interests of the child, it would take place without a sharing of the costs."

Conclusion: Arbuthnot J set aside the order for direct contact. The issue of direct contact was to be redetermined at first instance, when detailed consideration of PD12J should take place once the expert report has been obtained. In relation to the payment of the costs of contact, she set aside the judge's order that the mother pay a proportion of the costs of contact. The appeal was allowed on grounds 2 and 3 and allowed in part on grounds 1 and 4.

Introduction: The Honourable Mr Justice Cobb’s fact-finding judgment in respect of cross-allegations of domestic abuse in a case remitted by the Court of Appeal to the High Court for re-hearing following the mother’s successful appeal in the case of B-B, one of the conjoined appeals reported as Re H-N [2021] EWCA Civ 448. Mr Justice Cobb proceeded as the Court of Appeal contemplated that he should, on the basis that the court should consider whether a pattern of coercive and/or controlling behaviour can be demonstrated on the evidence and have not merely focused on any singular particular factual incident (Re H-N para 31).

Preparation: Cobb J highlighted the following points (para 6):

“i) The benefit of considering the evidence relevant to each different form of alleged domestic abuse in 'clusters': thus, it was useful to 'cluster' the evidence which went to the issue of alleged physical abuse; separately I considered the evidence of the allegations relevant to sexual abuse, separately emotional abuse, separately financial abuse and so on. Inevitably, the evidence relevant to each form of abuse overlapped in places, but in looking at the evidence by reference to the different forms of alleged abuse, a picture was built up of the nature of the relationship under scrutiny, and it was easier to see whether patterns of behaviour emerged. This may not have been so apparent had the matters been looked at by reference to individual / free-standing items on a Scott Schedule. I accept the Court of Appeal's view that it is the cumulative effect of individual incidents within each of those clusters of abuse-type, and of each type of abuse on the other, which give the clearest indication of the experience of abuse;

ii) The importance of resolving these issues close in time to the events in question; this hearing took place between three and five years after the key events. The delay in resolving the issues has compromised the quality of the evidence itself, and the delay has inevitably taken a toll on the litigants who have not been able emotionally to get on with their lives;

iii) The need for flexible arrangements to ensure that participation directions (rule 3AA FPR 2010) truly meet the needs of the parties and the case; the increased use of 'hybrid' hearings over the last 18 months (for all types of hearing in the family court) provides a useful template which worked well in this case;

iv) The need for advocates to focus on those issues which it is necessary to determine to dispose of the case, and for oral evidence and/or oral submissions to be cut down only to that which it is necessary for the court to hear;

v) The evidence of the principal parties is always likely to be far more valuable than the evidence of supporting witnesses; at the case management stage, judges should rigorously test with the parties and/or their advocates (and review for themselves) what (if any) real value is likely to be brought to the enquiry by the evidence of third parties;

vi) The importance of judicial continuity in domestic abuse cases; unsurprisingly, I had no prior connection with this case before it was remitted for hearing by the Court of Appeal. But it struck me as I considered the case management of this case prior to the hearing, and indeed as I listened to the evidence itself, that continuity of judicial involvement would have enhanced the efficient and sympathetic management of the process;

vii) That an abusive relationship is invariably a complex one in which the abused partner often becomes caught up in the whorl of abuse, losing objective sense of what was/is acceptable and unacceptable in a relationship. Like many abused partners, the mother in this case became immunised to the emotional volatility of the damaging relationship which she saw as normal and acceptable; like many abused partners, she clung to what she knew.”

Cobb J commented that, in the preparation of the case (following the appeal), quite apart from the fact that the trial bundle(s) did not comply with PD27A FPR 2010 (in aggregate the bundles exceeded 1,300 pages), there had been little thought given to rule 1 FPR 2010 and the President's 'Road Ahead' guidance (first published in 2020). Cobb J pointed out to the parties, that the 'Road Ahead' document remains of real importance in cases of this kind at this time.

General principles of law: Cobb J went on to distil the relevant legal principles [para 26]:

“i) The burden of proof lies, throughout, with the person making the allegation. In this case, both the mother and the father make allegations (in some respects overlapping) against each other on which they seek adjudications;

ii) In private law cases, the court needs to be vigilant to the possibility that one or other parent may be seeking to gain an advantage in the battle against the other. This does not mean that allegations are false, but it does increase the risk of misinterpretation, exaggeration, or fabrication;

iii) It is not for either parent to prove a negative; there is no 'pseudo-burden' on either to establish the probability of explanations for matters which raise suspicion;

iv) The standard of proof is the civil standard – the balance of probabilities. The law operates a binary system, so if a fact is shown to be more likely than not to have happened, then it happened, and if it is shown not to cross that threshold, then it is treated as not having happened; this principle must be applied, it is reasonably said, with 'common sense';

v) Sometimes the burden of proof will come to the judge's rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But, generally speaking, a judge ought to be able to make up his/her mind where the truth lies without needing to rely upon the burden of proof;

vi) The court can have regard to the inherent probabilities of events or occurrences; the more serious or improbable the allegation the greater the need for evidential 'cogency';

vii) Findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation; it is for the party seeking to prove the allegation to "adduce proper evidence of what it seeks to prove";

viii) The court must consider and take into account all the evidence available. My role here is to survey the evidence on a wide canvas, considering each piece of evidence in the context of all the other evidence. I must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the person making the allegation has been made out to the appropriate standard of proof;

ix) The evidence of the parties themselves is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability;

x) It is, of course, not uncommon for witnesses to tell lies in the course of a fact-finding investigation and a court hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. I am conscious that the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720);

xi) That my function in resolving disputes of fact in the family court is fundamentally different from the role of the judge and jury in the Crown Court, as the Court of Appeal made clear in Re R [2018] EWCA Civ 198.

xii) At all times, I must follow the principles and guidance at PD 12J of the Family Procedure Rules 2010.”

Findings: In accordance with the general guidance of the Court of Appeal, and consistent with Poole J's comments in Re JK, Cobb J considered these allegations within the context of a wider narrative. Cobb J used the following subject headings:

i) Emotional control/coercion;

ii) Physical abuse;

iii) Infidelity;

iv) Financial control;

v) Sexual abuse;

Conclusion: Cobb J carefully considered the evidence relevant to each specific incident to which his attention was brought; he treated the incidents not as 'free-standing' events but as part of a wider pattern of alleged abuse or controlling or coercive behaviour. In his judgment, he had not sought to deal with every argument or detail of the case [para 94].

Cobb J commented that the mother spoke in her evidence of the 'power imbalance' in the relationship, and Cobb J was satisfied that the evidence amply reveals this. The father is several years older than the mother and considerably more worldly; Cobb J found that he was manipulative of the mother during their relationship, and this tapped into her vulnerability [para 95]. Cobb J further found that the father was abusive to the mother in the relationship in a number of different ways. Cobb J was satisfied that the father's behaviour went beyond the "directive, assertive, stubborn or selfish behaviour" which is occasionally seen within relationships [para 96]. In his judgement, Cobb J found that the father took advantage of the mother's youth, vulnerability, and naivety and the relationship was one (from the outset) where he was the dominant partner [para 98].

Cobb J went on to conclude that given his findings of domestic abuse, it will be necessary to consider the impact which that abuse has had on the mother and on the child. In light of that evaluation, he commented that it will be necessary for him to determine what orders are to be made for the future protection and welfare of the mother and the child. In this regard the findings will need to be considered, bearing in mind that [para 100]:

"Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both parents." [Para 4 of PD12J].

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