Sacha Lee considers precedent on Re H-N  EWCA Civ 448 and beyond…
The recently reported case of K v K  EWCA Civ 468 was heard before Sir Geoffrey Vos MR, Sir Andrew McFarlane and King LJ in the Court of Appeal. Their joint judgment has provided essential clarification, of which practitioners should take careful note.
The first is in respect of Mediation Information and Assessment Meeting (MIAMs). The Court of Appeal commented at  that: “it was unfortunate that the parties in this case did not take advantage of the MIAM. Had they done so, the issues between the father and mother that concerned the logistics of the father’s contact might have been speedily resolved before the inevitable trauma caused to the family by the Fact-Finding process”.
Devoting paragraphs - to the issue of MIAMs, the Court of Appeal made it very clear prior to making a relevant family application, a person must attend a MIAM, unless one of the “tightly drawn” exemptions apply (quoted at -).
At , the Court of Appeal quoted s10 of the Children and Families Act 2014 for emphasis: “[b]efore making a relevant family application, a person must attend a family Mediation Information and Assessment Meeting.”
The court also quoted Rule 3.3(1) of Part 3 of the FPR 2010, stating, at : “We have, however, set out the essential elements of the statutory scheme to stress the importance of the requirement in rule 3.3(1) for the court to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.”
At , the Court of Appeal went one step further and criticised the Respondent father for not engaging with the MIAM process, stating: “It is a matter of concern that a party can avoid the statutory MIAM requirement by simply asserting that a case is urgent and that they need a without notice hearing. Such assertions must be checked at or before the FHDRA under rule 3.10(1) … For the statutory MIAM requirement to be effective, it must be enforced. The father ought to have been required to engage with the MIAM process.”
It is clear from this judgment the Family Court expects parties to seriously consider non-court dispute resolution options at every stage of proceedings, including prior to applying to the court, by engaging with the MIAM process – and those who do not do so open themselves up to potential judicial criticism.
The Court of Appeal emphasised, at : “As the acronym, FHDRA, makes clear, it is a First Hearing and Dispute Resolution Appointment. Its essential purpose is as an opportunity for judicially led dispute resolution.”
The Court of Appeal also quoted from [14.8] and [14.11] of the Child Arrangements Programme in FPR PD 12B to make very clear for practitioners and parties alike:
“The FHDRA provides an opportunity for the parties to be helped to an understanding of the issues which divide them, and to reach agreement… At the FHDRA the judge, working with the Cafcass Officer, or WFPO, will seek to assist the parties in conciliation and in resolution of all or any of the issues between them…At all times the decisions of the Court and the work of the Cafcass Officer or WFPO will take account of any risk or safeguarding issues that have been identified.”
Consideration of Re H-N  EWCA Civ 448
The Court of Appeal endorsed Re H-N at  – and provided some helpful guidance as to the Court of Appeal’s intentions in the case, clearing up two misunderstandings which have subsequently arisen.
It reiterated the “most crucial passages” (at ) from Re H-N:
“8. Not every case requires a fact-finding hearing even where domestic abuse is alleged. As we emphasise later, it is of critical importance to identify at an early stage the real issue in the case in particular with regard to the welfare of the child before a court is able to assess if, a fact-finding hearing is necessary and if so, what form it should take…”
And: “139. Domestic abuse is often rightly described as pernicious… As discussed at paragraphs – above, that does not, however, mean that in every case where there is an allegation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing, so much is clear from the detailed guidance set out in paragraphs – of PD12J and, in particular, at paragraph .”
They also re-stated the approach guidelines given in Re H-N at . In short:
1) Consider the nature of the allegations and the extent to which they are likely to be relevant in deciding whether to make a Child Arrangements Order (CAO) and if so, in what terms;
2) Bear in mind PD 12J, i.e.: a basis of assessment of risk and impact of alleged abuse on the child;
3) Consider whether a Fact-Finding Hearing (FFH) is necessary – including whether there is sufficient factual evidence to proceed and, if the allegations are proved, the relevant of the issue before the court (PD 12J.17); and
4) Whether a separate FFH is necessary and proportionate (PD 12J.17(h), bearing in mind the overriding objective and the President’s Guidance in ‘the Road Ahead’.
The Court of Appeal clarified: “A decision to hold a Fact-Finding Hearing is a major judicial determination within the course of family proceedings. The process will inevitably introduce delay and postpone anything other than an interim determination of issues relating to the child’s welfare, which is contrary to the statutorily identified general principle that any delay in resolving issues is likely to be prejudicial to a child’s welfare (s1(2) of the CA 1989).
Further, the litigation of factual issues between parents is likely to be adversarial and, whatever the outcome, to have a negative impact on their ongoing relationship and ability to co-operate with each other as parents. It is therefore important for the court, in every case where an FFH is being considered, to take time to identify the welfare issues, to understand the nature of the allegations, and then to consider whether the facts alleged are relevant to those issues and whether it is, therefore, necessary for the factual dispute to be determined.” (at ).
Addressing the first of two misconceptions arising following Re H-N, the Court of Appeal stated: “[t]here is a perception that the Court of Appeal has somehow made it a requirement that in every case, in which allegations of domestic abuse are made, it is incumbent upon the court to undertake fact-finding, involving a detailed analysis of each specific allegation made. That is not the case. As Re H-N explained and we reiterate here, the duty on the court is limited to determining only those factual matters which are likely to be relevant to deciding whether to make a Child Arrangements Order and, if so, in what terms.”
The second misunderstanding pertains to paragraph  of Re H-N, where the Court of Appeal stated:“Where, however, an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.”
The Court of Appeal in K v K has clarified at : “That sentence is a requirement to consider an overarching issue of coercive or controlling behaviour, where to do so is necessary for the determination of a dispute relating to a child’s welfare. It is not a requirement for the court to determine every single subsidiary factual allegation that may also be raised.”
Issuing a warning, the Court of Appeal in K v K reminded us, at : “[While] the court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the court to hear about, much less to resolve, issues between the parents relating to their time together, unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child.”
The overall tenor of this judgment is one of caution and conflict resolution. The Court of Appeal has emphasised the importance of reducing the temperature in court proceedings, making clear MIAMs are compulsory, save for very narrow exceptions – and non-court dispute resolution must be properly considered at each stage.
The Court of Appeal has also provided a timely reminder of the seriousness of an FFH the subsequent impact it will have on the parties, and they are not an opportunity for parties to seek vindication. They are only to be used when deemed necessary and proportionate for the welfare of the child, after careful analysis of the established guidelines.
As practitioners, this endorsement and the above clarification provides essential child-focused guidelines for the way forward in cases where allegations of abuse have been made.
Sacha Lee is an assistant solicitor in the children team with Vardags: vardags.com/services/children-and-familyTags:
Angela Jack dissects the recent ruling in Lidl Great Britain Ltd & others v Tesco Stores Limited & others  EWHC 873 (Ch)
Billions of pounds in NHS damages claims could have been avoided had recommendations from past reviews been followed by action, argues Kerstin Scheel
Laurence Howland explores the mechanisms of Chinese underground banking and the red flags
Chris Marston explores the ways in which law firms can establish a powerful collaborative culture
The Solicitors Journal spoke to James Fulforth, Kingsley Napley’s newly appointed Senior Partner, about his experiences in the law, his thoughts on the UK’s tech sector and what he hopes to achieve in his new role
Sophie Cameron takes a look at the news in the April Foreword