Non-molestation and child arrangements orders
Re J (Children)  EWCA Civ 115 (6 February 2018) raises at least the following issues:
- Hearing of cases of domestic violence and the period any non-molestation order;
- Case management and how long it takes a children case to come to trial;
- Litigants in person and their McKenzie friends (MFs);
- The fair trial of a parent’s case where he cannot obtain legal aid.
After nearly 20 years of marriage a couple separated in September 2014 when the father left their home. They had three children then aged around 16, 13 and 8. W obtained a not on notice non-molestation order in December 2014 (why she applied three months after the separation, the report does not say). This included that H should not communicate with W or the children; and it continued till 22 December 2016, though an earlier return date in January 2015 was fixed. H wanted contact with his children. He cross-applied for a child arrangements order and for his own non-molestation order. He alleged balancing abusive behaviour by W. A ‘finding of fact’ hearing was fixed before a judge on 2 July 2015.
At that hearing H had a McKenzie Friend (MF). But how much part could MF play in the proceedings? He was refused permission to address the court or to cross-examine W. It was agreed that as H was offered contact there would be no fact-finding exercise; though the injunction, with no contact by H and no findings still stood. The children remained resistant to contact. Eventually a final hearing was fixed for 12/13 July 2016 (sic).
The father’s appeal
It was the decision at that hearing against which H appealled to the Court of Appeal on the following grounds:
- The non-molestation order was allowed to run without determination of facts.
- The MF had been wrongly denied a right of audience.
- No findings of fact had been made.
- The full powers of the court had not been used eg where their guardian admitted they were suffering emotional harm.
The outcome was a Pyrrhic victory for the father. His appeals on (1) and (3) were allowed; but no order was made by the court. The objections expressed to NYAS by the children to contact made any fresh hearing on the contact application, said the court, ‘simply too late and contrary to the welfare interests of the [younger two] children’ (para ).
It will be striking in this post, that many of the legal principles applied are derived from a practice direction (eg FPR 2010 PD12J) and from ‘practice guidance’. Neither of these have the force of law in the way that, for example, a statute or the common law (judge-made law) have. It might have been possible for the father at first instance to have challenged the judge on the content of the McKenzie Friend practice guidance (considered below); but that is a discussion for another day.
‘Findings of fact’ hearings
Routinely family judges set down hearings for ‘findings of fact’. I have never understood quite what this means. It is the principal function of a judge in any case whatever the background that the court finds facts, applies any law to those facts and then, exercising any discretion vested in him or her, disposes of the case – ie makes an order. Having a ‘finding of fact’ hearing implies there is in some way a phased process, in which establishing facts is the first step. This is only rarely the case.
I can see that case management here might have demanded that the abuse issues between H and W needed to be resolved at one hearing. This would result in an order. A second hearing, probably before the special measure judge, might then involve further factual and welfare issues to be resolved for the boys. Any child arrangements order could then be made and the extent (if any) of the father’s contact resolved. Domestic abuse and contact might be separate issues; but each will call upon a court – as with all cases tried every day – to find facts on which a determination may be based.
Non-molestation order and its duration
The non-molestation order made for two years was not ever revisited. This was in breach of the then practice direction (re-enforced by Practice guidance 18 January 2017: Family Court – Duration of without notice orders): that without notice orders should have a return date of not more than 14 days from the first order (para 5(ii)).
I am not at all sure this is what the law (as distinct from a ‘practice guidance’) says. Family Law Act 1996 s 42, which enables a court to make a non-molestation order, says that an order can be ‘for a specified period or until further order’ (s 42(7)). For H in this case there is no doubt that the period should have been much shorter and the facts on which the original order was made should have been tested much sooner (as the Court of Appeal accepted).
Domestic violence: delay and case management
The courts had had what McFarlane LJ called a ‘wake-up call’ as to ‘the potential harm to children that may arise from domestic abuse within a family, whether or not the children are directly involved in any particular episode of such abuse (para ) Re L; Re V; Re M; Re H (Contact: Domestic Violence)  2 FLR 334. Practice directions have followed.
The most recent practice direction, was an amended PD12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm (October 2017) by which ‘courts are required, at an early stage in proceedings, to identify whether there are issues of domestic abuse and, if so, apply the requirements of PD12J to their management of the case’ (para ). PD12J para 19 requires court to ensure that cases which may involve domestic abuse are resolved and emphasises the need for ‘the proceedings to be “conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties” (emphasis added by the judge)’ (para ).
The role of McKenzie friends are regulated by practice guidance Practice guidance: McKenzie friends (civil and family courts): 12 July 2010  2 FLR 962 (Lord Neuberger MR and Sir Nicholas Wall P). There is no clear law on what their role and rights of audience are. No rules or even a practice direction, still less primary legislation, explains their positon.
By contrast common law backed by European Convention 1950 Art 6(1) (right to a fair trial) – and, perhaps, Art 6(3) (to be explained another day) – requires that anyone coming to court should have a fair trial. This is backed by Convention jurisprudence which declares that Art 6(1) entitles parties to ‘equality of arms’; and this is echoed in the family proceedings overriding objective that requires that parties be ‘on an equal footing’ (FPR 2010 r 1.1(2)(c)).
The practice guidance provides a definition of what a McKenzie Friend is and what they may do. The case of Re J, said McFarlane LJ (), did not provide an opportunity to set out guidance beyond what is in the 12 July 2010 practice guidance. So far as cross-examination by a McKenzie Friend is concerned, the court by implication was not prepared to consider this. The ‘stark’ choice remains (as set out in K and H (Private Law: Public Funding)  EWCA Civ 543,  1 FLR 754): either the alleged abuser cross-examines; or the judge puts the questions for him or her (MFPA 1984 s 31G(6)).
On the McKenzie Friend ground the father’s appeal was not allowed; though his McKenzie Friend was permitted to address the Court of Appeal. However, acting as ‘counsel in a trial’ said the Court of Appeal was an ‘altogether different issue’ ().
Fairness of an alleged abuser’s trial
This still leaves the question of the fairness of the way in which cases such as H’s are tried, where someone in his position does not have access to legal aid nor the means to pay for representation. This is for another day, with the current legal aid provisions and with the law – such as it is – on McKenzie Friends and Arts 6(1) and 6(3) fully in mind.