It is a feature of family law that certain events can lead to proceedings in both the civil and criminal courts. What happens if the two courts make different findings in relation to the same event? That, essentially (subject to what I say below), was what happened in the recent High Court case Re LG (Re-opening of Fact-finding).
The case concerned an application by a father for a child arrangements order in relation to his seven year old daughter. Initially the father sought only contact, but he subsequently expanded his application to include the issue of residence. In response to the application the mother made allegations of domestic violence against the father, including an alleged incident in March 2015 that the father had damaged her car while the mother, the child and the mother’s older child were all in the vehicle. Following a police investigation, the father was charged with an offence of criminal damage arising out of that incident.
The father’s application went before the magistrates’ court and in June 2015 the court gave directions for a fact-finding hearing to investigate the mother’s allegations. At that stage it was anticipated that the criminal proceedings would have been heard before the fact-finding hearing. However, the criminal trial was adjourned, and the fact-finding hearing took place first.
At the fact-finding hearing in August 2015 the magistrates did not find the mother to be a credible witness. They concluded that, on the civil standard of proof (the balance of probabilities), none of her allegations had been proved. The mother appealed, but her appeal was dismissed by a circuit judge.
The child arrangements proceedings then went ahead and in February 2016 an order was made by consent providing that the child should live with her mother and have defined contact with the father.
Just 12 days later the criminal trial finally took place. On this occasion the magistrates (a different bench) did not believe the father, and he was convicted, using the higher criminal standard of proof (beyond reasonable doubt). The magistrates also made a restraining order against the father, preventing him from harassing the mother.
Contact then broke down again and the father applied to enforce the contact. Eventually, following a change of solicitor, the mother filed an application for the setting aside of the findings made by the justices in August 2015, in the light of the father’s subsequent conviction for the offence of criminal damage and the imposition of a restraining order. The application was dismissed by the judge, and the mother appealed.
The appeal was heard by Mr Justice Baker in the High Court. He found that the judge’s decision was wrong.
“The fact that the father was subsequently convicted and made subject to a restraining order following a trial at which his evidence had been disbelieved does not mean that the assessment of the family court at the fact-finding hearing was necessarily flawed, but it does follow that there is a reasonable prospect that it might have been flawed, and it certainly follows that the assessment was incomplete. If, as anticipated when the case management directions were made by the justices in June 2015, the criminal trial had taken place before the fact-finding hearing, the fact that the father was convicted and made subject to a restraining order would unquestionably have been relevant to the justices’ assessment of the allegations at the fact-finding hearing.”
“It follows in my view that no court has yet carried out a competitive [?comprehensive] analysis of the allegations of domestic abuse in this case … A comprehensive analysis of the allegations may demonstrate that the mother has fabricated or grossly exaggerated her case. Alternatively, it may demonstrate that some or all of the allegations are true and that the pattern of incidents alleged by the mother demonstrates abusive behaviour on the part of the father. The conclusion reached by the court on this issue will have a fundamental impact on the future child arrangements for [the child], not only on the question of contact but also, possibly, where and with whom she lives.”
“The subsequent conviction of the father for an offence of criminal damage to a car at a time when the mother and [the child] were present in the vehicle, and the subsequent imposition of a restraining order to protect the mother and her older child from further conduct amounting to harassment or causing fear of violence, give rise to “solid ground” for challenging the findings made by the justices in August 2015. In my view, there must now be a fact-finding hearing at which the court considers all relevant allegations to establish whether domestic abuse has occurred. It is only after this has occurred that the court will be in a position to determine what arrangements should be made for [the child] and ensure that, if violence or abuse is admitted or proven, a child arrangements order can be put in place that protects the safety and well-being of the child and the other parent.”
Accordingly, the appeal was allowed and the matter was remitted back so that the fact-finding rehearing be listed before a recorder.
I suggested at the beginning of this post that the two courts made different findings in relation to the same event. That was not necessarily the case. Unfortunately, it is not clear from the report whether the incident with the car in March 2015 was one of the allegations dealt with at the fact-finding hearing, but Mr Justice Baker said in his judgment that the criminal court dealt with “a completely different matter”. However, this is ultimately academic, as he also made clear that the court should thoroughly investigate all of the allegations of domestic abuse by the mother, which would obviously include the car incident. The important point is that both courts were dealing with matters related to the domestic abuse issue, and reached quite different conclusions, in particular in relation to the reliability of the evidence of the two parties.
The full report of Re LG can be found here.