As I have explained here recently, often in private law family proceedings relating to children the court is required to make findings regarding allegations that one parent makes against the other, and those findings can have a crucial bearing upon the outcome of the case. Obviously, therefore, a parent aggrieved at the court’s findings may wish to appeal against them. However, it can be very difficult for that parent to prove that the judge’s findings were wrong.
That, however, is what happened in the Court of Appeal case P-G (Children), and for rather worrying reasons. The case was heard in 2015, but the judgment has only recently been published on the Bailii website. The case also has something important to say about the usefulness of fact-finding hearings in these cases generally.
The case concerned cross-applications by both parents for orders that their two daughters, then aged 7 and 5, reside with them. The mother made various allegations against the father, which included sexually inappropriate conduct towards the mother; controlling behaviour such that the mother lost contact with her family and friends and which was also hostile and intimidating; verbal abuse; shouting and swearing at the mother, sometimes in front of children; throwing a “lump of cheese” at the mother, which hit a wall; swearing at and kicking the family dog; and swearing and shouting at the older child. The father did not deny all of the allegations, but argued that where incidents had taken place the mother was exaggerating, elaborating or taking the incident out of context.
A fact-finding hearing took place to determine the truth of the allegations. The judge found in favour of the mother. In doing so he took into account the contents of two reports from a social worker, which supported the mother’s allegations.
The father complained to the local authority that the social worker had been biased. The local authority upheld the complaint, finding that an injustice had been caused to the father for which financial compensation should be considered. The social worker had believed the mother, without checking or analysing the source material, or setting out the father’s contrary case or explanation.
The father appealed against the findings of fact, to the Court of Appeal. Giving the leading judgment Lord Justice Ryder found that the social worker’s reports were tainted evidence, which the judge had relied on when making his findings. There was a strong perception of unfairness, which meant that the findings had to be set aside. Accordingly, the father’s appeal was allowed.
However, Lord Justice Ryder had another observation to make. He said:
“It is not the case that all factual disputes between parents need to be resolved as a precondition to the issue of contact being determined by the Family Court. That simplistic formulation leads to unnecessary hearings and interminable delay for the children concerned. An acute scrutiny is necessary during case management of the disputes that the parties want to resolve. There may be an imperative of protection that needs to be considered or provided for a victim or a child, and Practice Directions 12B and 12J of the Family Procedure Rules 2010 are written with that imperative in mind. Nothing I say is intended to suggest otherwise. That said, there are many private law children cases where protection is not the critical issue. The findings of fact proposed will add little or nothing to the value judgment that the court has to undertake but will cause the child to lose the quality of a relationship with one of her parents that should exist.”
He went on:
“This is arguably one such case. The nature and extent of the findings of fact, even if made, would not, in my judgment, prevent direct contact between the children and their father”
Lord Justice McCombe agreed, saying:
“I have been concerned as to the likelihood of the fact-finding exercise conducted in this case providing any sensible information as to the desirability of contact between father and his children and/or the nature of that contact.”
And Lord Justice Elias also agreed:
“I too have found it difficult to understand why this expensive and time-consuming fact-finding exercise, raking over particular incidents in an acrimonious relationship between the parents, has any real bearing on the question of contact between the father and his children.”
Obviously, in any acrimonious parental separation allegations are likely to be made by one or both parties against the other. However, in many (most?) cases the allegations, even if true, are not of a nature that they should affect the outcome of the case. In other words, in such cases the court should ignore the animosity, and concentrate on the main issue: what is best for the welfare of the children.
You can find the full judgment here.