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14 March 2018

Fact-finding in Children Act proceedings: R (Children) [2018] EWCA Civ 198

6 mins

The Court of Appeal has recently considered the applicability of criminal law concepts within the context of fact-finding determinations in proceedings relating to children. Fact-finding determinations are often necessary in both public children proceedings, otherwise known as care proceedings and in private children proceedings. Care proceedings are proceedings brought by the social services department of a local authority where there are concerns about a child’s welfare. Private law proceedings typically involve disputes between parents about where a child should live and how they should spend time with parents or other significant adults with whom they do not live.  

It will be considered necessary for the court to make a fact-finding determination where one  party makes an allegation or allegations against another party, for example of domestic abuse, child abuse, or radicalisation which are denied, and the court considers that determining whether or not those allegations are true is necessary before the court can make a final decision in relation to the child’s welfare (for example, where the child should live and the nature of the relationship between them and any parents or other significant adults).

Sometimes, the court will decide that there should be a separate fact-finding hearing ahead of the final hearing (the hearing at which the final decisions are made in relation to the child’s welfare). Sometimes, the court will decide that any disputed facts can and should be determined at the final hearing, at the same time as the welfare issues relating to the child. The decision will be based on the specific facts of the case, and what is considered to be appropriate and proportionate.

Whether the court decides to make determinations at a separate fact-finding hearing or as part of the final hearing, the ‘burden of proof’ is on the party making the allegation. This means that it is for the party making the allegation to prove that it is true rather than for the accused party to prove that it is not true. The court makes its decision about whether an allegation is true or not ‘on the balance of probabilities’. This is a very crucial difference from how factual determinations are made in the criminal court in which allegations can only be found to be true if the court is sure ‘beyond reasonable doubt’. This difference in the ‘standard of proof’ means that often the family court has to make factual determinations even where a criminal court has already considered the same allegations. For example, the criminal court may have acquitted a parent for harming their child because of a technicality, or a problem with the evidence which meant that there was an element of ‘reasonable doubt’ about their guilt. However, the family court could still find that parent to have harmed the child if it considers that, on the evidence, it is more likely than not that the parent harmed the child.

In summary, the facts of the case considered recently by the Court of Appeal  were that the parents of two children had separated. The children lived with the father and regularly had contact with the mother at their home. During one visit, the parents had an argument which ended with the father inflicting a fatal stab wound to the mother’s neck. The children were present during this incident. The father was acquitted of all charges in the criminal proceedings that followed. The local authority issued care proceedings and the matter came before Mrs Justice Theis in the family court. In its final threshold document, (the document in which the local authority sets out the factual background upon which it says the court should make orders in relation to the children) the local authority sought a finding that the father killed the mother and in doing so used ‘unreasonable force’ or, alternatively, was ‘reckless’. The local authority filed the final threshold document 11 days before the final hearing, which was postponed by one week to allow further time for preparation. At the final hearing, Mrs Justice Theis made a finding that the father used ‘unreasonable force’ and ‘unlawfully’ killed the mother. The father appealed.

The Court of Appeal was called on to decide on two issues: firstly, the extent to which the family court should import elements of criminal law into a fact-finding hearing in childcare proceedings (for example ‘unreasonable force’, ‘unlawful killing’ and ‘recklessness’); and secondly, whether the limited time afforded to the father’s legal team to prepare the case amounted to unfairness within the terms of Article 6 of the European Convention on Human Rights (right to a fair trial).

The Court unanimously allowed the father’s appeal (although the judges differed in their approaches to determining the issues). Lord Justice MacFarlane stated that criminal law concepts should not be applied in family proceedings because the purpose of the family court is not to establish innocence or guilt but to determine the facts that are relevant to the court’s welfare decision-making. The language used in the family court to describe the facts sought or the judgment should avoid reference to criminal law concepts, for example, ‘unreasonable force’. In coming to this conclusion, the court emphasised the differences between criminal and family proceedings including the wider range of evidence admissible in family proceedings and, importantly, the lower standard of proof in family proceedings such that the court considered that it would be at best meaningless to make a finding of murder, manslaughter or unlawful killing in the family court.

In relation to the second issue, the court found that the late disclosure of important documents relevant to the fact-finding, together with other issues in the case, meant that there had not been a sufficiently fair trial. The matter has been remitted to the High Court for a re-trial.

Children proceedings involving fact-finding determinations whether in separate fact-finding hearings or in a ‘rolled-up’ final hearing are complex and require careful preparation. The family team at Bindmans are leading experts in dealing such complex children matters, and have vast experience in representing parents, children and others in cases involving allegations of  domestic abuse, child abuse and radicalisation.

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