CM v IP

An appeal in private-law children proceedings may succeed where the lower court’s process was procedurally irregular and the resulting decision unjust. Where domestic abuse is raised, the court must actively consider vulnerability, participation directions and, where appropriate, a ground rules hearing. That duty rests on the court, even if the vulnerable party or advocate does not repeat the request.

The court must also keep under review whether a fact-finding hearing is necessary under Practice Direction 12J. Alleged coercive or controlling behaviour should not be treated as irrelevant merely because it is historic. The court must assess its possible relevance to risk, welfare and the safety of the child and resident parent. Failure to undertake those evaluations justified allowing the appeal and remitting the case for rehearing.

The parties were engaged in continuing private-law proceedings concerning their ten-year-old child. The mother alleged domestic abuse, including rape, physical and emotional abuse, and coercive and controlling behaviour. The father disputed those allegations and alleged parental alienation.

The Family Court at West Cumbria, sitting before HHJ Dodd on 20 December 2021, refused to direct a wider fact-finding hearing and made child arrangements orders. The mother appealed on two grounds: failure to implement participation directions for a vulnerable party, and failure properly to consider whether her allegations required determination under Practice Direction 12J. The central issues were whether the first-instance process was procedurally unjust and whether the decision not to direct fact-finding was legally sustainable.

1. Appeal allowed. Under FPR 30.12(3), an appeal may be allowed where the decision below was wrong or where procedural irregularity made the decision unjust.
2. The appellate court must read the judgment as a whole and avoid narrow textual analysis. It should be slow to interfere with factual findings, evaluations and inferences, but must intervene where an error of law, procedural unfairness or an impermissible exercise of discretion is shown. The principles in Piglowska v Piglowski, Re F (Children) and Fage UK & Anor v Chobani UK Ltd & Anor were applied.
3. Where a person is or may be a victim of domestic abuse, s.63 of the Domestic Abuse Act 2021, Part 3A of the FPR 2010 and PD3AA require the court to proceed on the assumption that vulnerability may diminish participation and evidence. The court must identify vulnerability, consider participation directions and, ordinarily, hold a ground rules hearing before evidence is given. The duty belongs to the court and is not displaced by the absence of a renewed request from counsel.
4. The first-instance judgment contained no consideration of s.63, Part 3A, PD3AA, special measures or a ground rules hearing. In the circumstances, the omission demonstrated that the relevant statutory duties had not been performed. The resulting procedural irregularity made the decision unjust.
5. Under PD12J, the court must keep under review whether domestic abuse is an issue and whether fact-finding is necessary. It must consider whether the allegations, if proved, would be relevant to the issues, whether the matters can fairly be determined without fact-finding, and the potential impact on the child and the resident parent. Allegations of coercive or controlling behaviour should not be discounted as historic without proper analysis. The approach in Re H-N & Ors (Children) (Domestic Abuse: Finding of Fact Hearings) was applied.
6. The case was remitted for rehearing by a different circuit judge. Directions were to address participation measures, the proper forensic examination of the parties’ allegations, the scope and structure of any fact-finding, and the time estimate. The existing arrangements were stayed pending further directions, reverting temporarily to the previous arrangements.

• High Court (Family Division): allowed the appeal against the Family Court order of 20 December 2021 and remitted the matter for rehearing by a different circuit judge.
• Family Court at West Cumbria: HHJ Dodd made child arrangements orders on 20 December 2021 after refusing to direct a wider fact-finding hearing.