AA v BB  EWHC 1822 (Fam)
This case is an important reminder of the guidance given by the Court of Appeal in Re H-N, Re T, Re H and Re B-B  EWCA Civ 448 in relation to the case management of Fact-Finding (‘FF’) hearings in Children Act (‘CA’) proceedings.
A 2-day FF hearing was listed in CA proceedings to take place on 4 and 5 February 2021. At earlier hearings in August and October 2020, case management directions were given for the FF hearing:
- In August 2020, the parties were ordered to each file a Scott Schedule (‘SS’) of allegations (limited to 5 allegations) and a schedule in response to that of the other party.
- At a subsequent FHDRA in October 2020, the parties were ordered to each file a witness statement by 18th December 2020.
The start of the FF hearing was delayed due to court pressures (the hearing was not called on until 2pm). At the start of the hearing, the Recorder was faced with a preliminary application by Father to exclude further evidence the Mother sought to rely on. This evidence included a further witness statement from her, a witness statement from the maternal grandmother and the children’s nanny.
In seeking to exclude the additional evidence, Father’s counsel referred to the previous orders limiting the allegations to 5 in number; the evidence that Mother sought to adduce went way beyond the 5 allegations permitted in the SS. Further, the previous case management orders did not permit any further statements to be provided.
Due to the delay in hearing the matter, the FF hearing had to be adjourned in any event (to a date in September). However, the Recorder determined Father’s application to exclude evidence.
The five allegations originally set out by the Mother in her SS included:
- an allegation that the Father had negligently allowed the younger child to fall from a high table at the age of 6 months, resisted going to the Accident and Emergency Department and then refused to allow the child to be admitted overnight.
- Father had forced her to have sex with him and in doing so passed on a sexually transmitted disease to her.
- Father slapped the oldest child, threw a parcel at him, and then threatened he was going to kill him.
- Father self-harmed and called the police saying that she was responsible; and
- On an occasion in 2020, the Father had shouted at the older child, undermined, and mocked him, and then twisted his arm to remove a remote control. The Father had then shouted at the Mother in front of the children.
The additional statement that Mother sought to rely on added more detail and examples of the abuse she alleged the Father had inflicted on her and the children. She said that the Father's abusive behaviour to her was constant and that from 2019 he had become more abusive and violent to herself and the children. Mother said that the forced sex as alleged in her SS was not the only occasion it had happened. She said that her mother had witnessed several serious incidents when the older child had been hit by the Father, and that the child himself had told his therapist of these events. She said the Father had been forced to resign from his job to avoid being disciplined for bullying at work. The statement also included other allegations, for example that the Father had stolen her passport and those of the children so that they were unable to go on a holiday or travel, that he had been controlling about money, and that he did not have any relationship with his older children.
The Mother’s statement also annexed medical evidence from professionals treating the oldest child, detailing how he had made allegations against his Father and the mental health difficulties the child was suffering as a result. Mother also attached an opinion from Counsel instructed to advise the Father as to a possible claim for constructive dismissal. Mother stated the evidence (that which must have been included in the advice) was ‘similar fact evidence’ and demonstrated that Father bullied people at work.
The Recorder decided that significant parts of the Mother’s additional statement should be excluded. The parts that the Recorder said should be excluded were as follows:
- the statement by the Mother that the Father's violent and abusive behaviour towards the children had worsened in 2019;
- The mother's statement that the occasion when she said the Father had cajoled or pressured her into having sex 'was not the first time';
- The Mother's statement referring to the 'constant' abuse of the older child;
- The Mother's contention that the Father would frequently mock the older child and be nasty to him, and that the child had explained this to the therapist;
- The Mother's statement that her own mother had told her she had witnessed several incidents where the older child had been hit by the Father;
- The views of the psychologist about the older child;
- Allegations that the Father had had affairs, slept with prostitutes.
- Allegations about the Father using a fake passport, stealing passports and the use of a credit card.
The Recorder allowed the statement from the maternal grandmother but concluded that large parts of it went beyond the allegations set out within the SS and were irrelevant (these appeared to relate to evidence from the maternal grandmother that the Father had been abusive throughout the relationship, that he isolated the Mother, that he assaulted her when she was in hospital and that he had thrown flowers to the floor). The Recorder allowed the statement from the children’s nanny in full.
The Recorder excluded the medical evidence and Counsel’s opinion relating to Father’s employment. The Recorder concluded that the views of the treating professionals may be relevant to the welfare stage of the proceedings rather than the FF hearing – this was despite one report recording that the older child had complained to the medical professional that his Father had hurt him and become very angry with him.
Justice Judd DBE allowed the appeal, noting that she was sympathetic to the Recorder who did not have the Court of Appeal’s decision in Re H-N available to him at the time of his case management decision.
Viewing the potency of the additional material that Mother sought to rely on, J Judd concluded that the evidence plainly went to a ‘pattern of behaviour’ (such as whether the child was hit once or several times and whether Mother was forced to have sex once or on several occasions) which was highly relevant to the issue of contact. It, therefore, should have been admissible. J Judd noted that there will be occasions when a judge refuses relevant evidence produced at the last minute if the evidence is not highly significant in relation to the other evidence and/or it cannot be adduced fairly without an adjournment, causing delay for the child. In this case, not only was the evidence (additional allegations) found to be highly significant, but the FF had to be adjourned in any event until September 2021. Any prejudice to the Father by the late filing of the additional evidence (which was served only a few days before the FF) could, therefore, have been avoided by sensible case management directions; there was a further case management hearing listed in July.
In closing, Justice Judd appreciated (at ) the difficulty that family courts will face when trying to manage these types of cases effectively, especially in light of the President’s guidance issued in 2020 which was that in order to have any chance of delivering on the needs of children or adults who need protection from abuse, there will need to be a very radical reduction in the amount of time the court affords to each hearing. It does not seem that, in light of the views expressed in Re H-N, less court time is going to be allocated to these cases. If anything, judges are going to be cautious in their approach to case management in future and will no doubt ensure that all relevant evidence (in seeking to show a ‘pattern of behaviour’) is before the judge dealing with the FF. This is likely to extend the time needed for FF hearings, if anything, as the court will also have to grapple with specific allegations of abuse. Despite the parties in Re H-N unanimously undermining the use of SSs in FF hearings, it is unclear if these will stop being used and what (if anything) will replace them. What does the future hold for Scott Schedules? Your guess is as good as mine.
 The Family Court and COVID 19: The Road Ahead, dated 9 June 2020.