Fact-finding hearing into death of mother ‘should be reheard’

Family Law|March 2nd 2018

A fact-finding hearing into the role played by a father in his ex-partner’s death took an inappropriate approach based on criminal law, the Court of Appeal has ruled.

The case concerned a couple with two children, aged 10 and seven. They separated following an “acrimonious” relationship when the father discovered that the mother had been having an affair. The children remained with their father but the mother returned regularly to see them.

However, this arrangement went seriously awry in June 2016, explained Lord Justice McFarlane in the Court of Appeal.

“On the evening of 2 June 2016 the mother of two young children died in the kitchen of their family home as a result of a single fatal knife wound to her neck; the wound had been inflicted by their father. As a result of that tragic event the children, A, a girl aged 10 and B, a boy aged 7, were removed to foster care and their father was arrested and charged with their mother’s murder.”

Both children were present during the incident. The father was later acquitted of murder in a criminal court, because, according to reports, the mother had picked up the knife first, using it to injure both their daughter and the father. She died during a subsequent struggle with him.

But a fact finding hearing in the family court nevertheless concluded that the father had used had “used unreasonable force and unlawfully killed the mother”. The Judge believed the father had not acted in self-defence after all, but had instead been motivated by “his burning resentment of the fact that despite all he has done the mother maintained her relationship with [Mr X] and wanted the marriage to end. ”

The father appealed on a number of grounds, but permission was granted for only two:

*The extent to which a fact-finding hearing in a family court concerning child welfare should incorporate elements of criminal law.

*Whether the father’s right to a fair trial, under Article 6 of the European Convention on Human Rights, had been breached because he and his legal team had been given minimal time to prepare for the case.

Lord Justice McFarlane concluded that the earlier fact finding hearing had indeed fallen into error by taking an inappropriate approach using concepts from criminal rather than civil law.

He explained:

“…as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.”

He continued:

“Whilst it may not infrequently be the case that the Family Court may be called upon to re-hear evidence that has already been considered in the different context of a criminal prosecution, that evidence comes to the court simply as evidence and it falls to be evaluated, in accordance with the civil standard of proof, and set against whatever other evidence there may be (whether heard by the criminal court or not) for the sole purpose of determining the relevant facts.”

His Lordship added:

“That the Family Court process in the present case fell into error in the manner that I have described is now conceded and is not in doubt. That it did so is a matter of both surprise and regret in circumstances where the highly experienced advocates for all three parties jointly advised the judge that it was necessary to rely directly on the criminal law and, so far as the local authority are concerned, where a specific finding of ‘unlawful killing, probably pre-mediated or otherwise carried out in anger’ was sought.”

In addition, some key documents had only been disclosed to the defence at a late stage. As a result, the fact finding hearing should be reheard the Court ruled.

Read the full ruling here.

Photo by David Hilowitz via Flickr under a Creative Commons licence.

Author: Stowe Family Law

Comment(1)

  1. Jo Archer says:

    The girl is certainly old enough, now, to have some say whether or not she wants to live with her mother’s killer…and one would hope that this time around the local authority emphasises the fact that he killed her infront of the children! Someone’s head should roll for this mistake – the children need closure.

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