The case of K v K (2022) was before the court of appeal in respect of whether the findings made against a father from allegations made by the mother were found to be too “unsafe” to have allowed the District Judge to make a decision as he did.
The proceedings concerned a girl, 12, and twin boys of 9. The parent’s separated in August 2017 the father had regular unsupervised contact. Issues arose regarding arrangements which led to arguments between the parents.
In early 2018 the eldest child refused to see the Father but the twins continued to do so, staying overnight on alternate weekends. Arguments were had between the parents over whatsapp in June 2019 and then mother restricted father’s contact to day time contact only
The Father then issued an application for a child arrangements order in December 2019. He did not attend a MIAM and claimed the urgency of Christmas arrangements as a reason for bypassing a MIAM. Mother filed a C1A making some minor allegations against Father but not objecting to unsupervised contact.
Cafcass provided a safeguarding letter to the court which referred to allegations made by the Mother, including rape and coercive control. Cafcass suggested a fact-finding hearing (FFH) should be considered.
At the FHDRA the judge read Caffcass’ recommendations supporting a FFH and decided there should be one. He ordered that Father should have supported daytime contact only in the interim. That contact only happened for a few months before the pandemic and the children had not seen their father since April 2020.
Findings were made at the FFH; at the final hearing, following a Cafcass report, a final order was made for monthly indirect contact only.
There was a second appeal before the court as the original Circuit Judge had upheld the original District Judge’s findings at the first appeal. The Court of Appeal stated that the DJ had been wrong by not considering the evidence as a whole and had placed too much weight on the allegations from the mother. They went further to say that the finding made against the father regarding him allegedly raping the mother was not justified or found adequately
They went further to state that in respect of other allegations the order that recorded the outcome of the Fact finding hearing contains significant inaccuracies, for example stating that the DJ had found father to have physically abused the children when he had not.
They stated that the DJ ought to have considered all the allegations in the context of whether Father had displayed coercive control affecting the children after the marriage had ended; the appeal judges were surprised that the judge found controlling behaviour after the split mainly based on the June 2019 WhatsApp messages which were all sent on one day.
The case provided the following points of interest
- MIAMs should not be bypassed unless there is a genuine reason. The court should consider at every stage whether non-court dispute resolution is appropriate and should scrutinise the validity of any MIAM exemption claimed.
- FHDRAs should be used as intended; their “essential purpose is as an opportunity for judicially led dispute resolution.” In this case it is possible that matters could have been resolved consensually at the FHDRA, given that Mother had said in her C1A that she did not object to unsupervised contact.
- It should not be assumed that a FFH should be automatically listed. The judge must look at all of the facts of the case and decide whether it is actually necessary in respect of the welfare of the children
Outcome
The Court of Appeal deemed that the findings were unsafe and therefore the case was sent back to a Circuit Judge to re consider whether a new FFH was needed. The court referred to the principles set out in Re H-N.
It is an interesting case to show that any allegations made against a party must be relevant to the welfare of the children and whether these allegations should therefore impact on the parties relationship and time spent with the children.
Author
Izzy Jaques
Senior Associate
