Cohabitation property law: a short introduction

Cohabitants: money, children and domestic abuse


If the process of family breakdown can be characterised, from a legal point of view, as dealing with children (including child financial support), money, any domestic abuse and (in the case of marriage) divorce, then in all of these the law does not distinguish between married and unmarried couples. Divorce does not apply to unmarried couples, obviously; but the fat of not being married is fundamental to financial and property issues between married and unmarried couples; and that is the main thrust of what follows.


On the fortieth anniversary of the Court of Appeal judgment in Davis v Johnson [1978] UKHL 1, [1979] AC 264 (27 November 2017: the case went on to House of Lords) it is worth comparing the law in 1977 with now to show that things have moved a little; but they have not moved in the area of property law and other financial support between cohabitants. This article looks at the present law for those who live together, and who may have children and share property.


The law in 2017 does not discriminate when it comes to cohabitants in respect of their children, child support and domestic abuse; though, as explained in Davis v Johnson in 1977 the law moved forward in a way which, at the time, was regarded as truly radical.


Domestic Violence and Matrimonial Proceedings Act 1976


In the Court of Appeal Lord Denning MR (who sat with four other judges including Sir George Baker P) described the background to Domestic Violence and Matrimonial Proceedings Act 1976 as:


‘Battered wives’ are now a matter of public concern. The House of Commons in 1975 set up a Select Committee of its members to report on violence in marriage. This committee heard much evidence on the problem. They presented a report calling for steps to be taken urgently to protect women who were subjected to violence. These steps included legislation. This took place and is now to be found in the [1976 Act]. This Act came into force in June of last year. Soon afterwards many a woman sought the aid of the county courts for protection under the Act….


In the House of Lords Lord Scarman (at 347) described the operative part of the 1976 Act as providing a ‘new remedy’, and that also for unmarried partners, as follows:


Subsection (2) enables an unmarried woman (or man) who is living with a man (or woman) in the same household as husband and wife to apply to the county court under subsection (1) and expressly provides that reference in subsection (1) to the matrimonial home shall be construed as a reference to the household in which they are living together. This reference indicates to my mind that those provisions of subsection (1), which make available to married people an injunction excluding the other party from the matrimonial home and an injunction requiring the other party to permit the applicant to enter and remain in the matrimonial home, are intended to be available also to unmarried partners.


In particular the Act was designed to restrain a party to a marriage from ‘molesting the applicant’ or ‘a child living with her’ (s 1(1)(a) and (b)); and declares that the remedy in s 1(1) shall –


(2) … apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.


This was the radical extension under the 1976 Act and was succeeded in 1995/6 by what became Family Law Act 1996 1996 Part 4, which preserves (as FLA 1996 s 42) the terminology, undefined, of ‘molestation’ used – as it had been in civil proceedings injunctions – up to then. I considered this more fully in Lord Scarman and a definition of domestic abuse.


Discrimination and cohabitation law


In contrast to the modern law on domestic abuse, property law (including from income – ie maintenance as between partners) is entirely discriminatory as between couples where they are married or not married. There is, generally, no discrimination in children law (eg under Children Act 1989) or where child support maintenance is concerned (Child Support Act 1991) according to whether parents are married or not. This is also the case in respect of domestic violence or of exclusion orders (the sop to the Daily Mail and assorted Tory MPs in Family Law Act 1996 s 41 (which said that if a couple were not married then where ‘the court [should] have regard to the fact that they have not given each other the commitment involved in marriage’ has been repealed).


The law does not differentiate according to gender, sexual orientation or religion. In one of the leading cases, Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, Barry Stack was the non-owning partner and claimant; and an important case on proprietary estoppel (Wayling v Jones [1995] 2 FLR 1029) concerned a same sex couple. That said, it is most likely to be the carer mother who is affected by the unfairness in the law.


If a couple is married there is a very clear divide between between the statute law which governs them (Matrimonial Causes Act 1973 ss 22-25A (mostly)), which depends on the discretion of the judges as to how their capital is distributed on relationship breakdown (divorce) and if they are not married, but jointly occupy freehold property. Where couples cohabit, and whether they own property jointly or only one owns, there is tangle between common law (mostly equity) with little scope for judicial discretion. For example, in the recent Liden v Burton [2016] EWCA Civ 275 (proprietary estoppel: see later) Hamblen LJ characterised the issues on appeal as: ‘(1) whether the judge wrongly applied the law to the facts as found; (2) whether the judge erred in the exercise of his discretion in giving effect to the equity’ in the particular case.


Cohabitation and co-ownership


Two particular sets of circumstances arise: first, where an unmarried couple – hetero-sexual or same sex – live together and jointly own property; or, secondly, where they live together in property which is in the name of one only (A) but the other (B) asserts a claim over that property. The question then is to what extent B may able successfully to pursue a claim against the property in A’s name. If they were married B would have a share unquestionably (the amount would depend on ‘all the circumstances’ of the case: Matrimonial Causes Act 1973 s 25). If they are unmarried (whether with or without children), all sorts of arguments may be needed if B is to secure a share.


The starting point is legal title. What is recorded at the Land Registry? What was said at the time when the property was purchased? Equity follows the law. Thus, for example, the law says that if two people own property jointly they have an equal interest in that property, unless the documents say something different. If a property is owned by one of them only, no-one else has a share (save as explained in trust interests below). Lady Hale explained this in Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858 as follows:


[56] Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all. In joint ownership cases, it is upon the joint owner who claims to have other than a joint beneficial interest.


If B claims a different share from what appears on the title then it is for B to prove it. Equitable principles apply. In practice these are more akin to contract principles than to the discretionary rules which apply on marriage breakdown. It remains the case that equity may be able to adjust the shares which appear on the title documents; but it is for the claimant to say why this adjustment should happen.


Implied trusts: resulting or constructive


The differential ownership – the ‘beneficial interests’ – which equity allows for is to imply a trust:


  • A resulting trust – Equity says that two (or more) owners share land in the proportions in which they put money up to buy it even though on the face of the title ownership is different; or
  • A constructive trust – The court imposes on A the requirement to hold property in some way other than required by law.


The purchase of property, where another person (A) makes a contribution, generally sets up a resulting trust in favour of the contributor proportionate to any cash contribution. Thus where A gives money to B to buy property, and B does so then a trust results to A for the value of his or her contribution (Dyer v Dyer (1788) 2 Cox Eq Cas 92). B is a trustee for himself and A. A can then enforce the trust as trustee under Trusts of Land and Appointment of Trustees Act 1996 (as explained in Pt 3) not eg as a mortgagee or unsecured lender.


The resulting trust is no more than an equitable presumption. It must yield to other evidence that demonstrates that no such interest was intended eg that a loan or a charge were intended; or that (say) a gift was intended (see discussion in Marr v Collie (Bahamas) [2017] UKPC 17, [2017] 2 FLR 674).


Constructive trust


The more common trust as between cohabitants is where A buys, or (at the relevant time in the relationship) already owns, property in A’s sole name; or that A and B jointly own property, but one of them wishes to say that they own it in shares which are other than equal. The issue then is whether the court will adjust the shares shown on the legal title or will grant a share at all; though as Lady Hale made clear in Stack v Dowden: ‘[69] …. cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.’


A trust may be constructed first where the court finds there is an agreement between A and B for differential holding and in addition the court finds that there has been ‘detrimental reliance’ by B on that agreement (Lloyds Bank plc v Rosset [1991] 1 AC 107, [1990] 2 WLR 867, [1990] 2 FLR 155). Thus whilst the resulting trust arises from contributions, the constructive trust is concerned with an agreement, understanding or other bargain relating to property.


Thus (say) a man (A) owns property, and agrees with B that she will come and live with him. B gives up her house to live with A (Grant v Edwards [1987] 1 FLR 87, CA); or she puts up money to be used towards the refurbishment of property (Drake v Whipp [1996] 1 FLR 826, CA). Conduct on the part of the claimant may be evidence of an agreement: in Eves v Eves [1975] 1 WLR 1338, CA Janet Eves did a variety of work there, including wielding a 14lb sledge hammer to break up concrete which covered the front.


Indeed, Eves v Eves includes the following from Lord Denning MR (at 1431). He describes an unmarried couple:


… They get a house; but it is put in his name alone. Then, before they get married, the relationship breaks down. In strict law she has no claim on him whatever. She is not his wife. He is not bound to provide a roof over her head. He can turn her into the street. She is not entitled to any maintenance from him for herself. All she can do is to go to the magistrates and ask for an affiliation order against him on the footing that she is a “single woman”: and get an order for him to pay maintenance for the children. If he does not pay, she may have great difficulty in getting any money out of him, even for the children. Such is the strict law. And a few years ago even equity would not have helped her. But things have altered now. Equity is not past the age of child bearing.


Little has changed in property law since then. Affiliation orders have gone and are largely replaced by orders under Children Act 1989 and by child support maintenance under Child Support Act 1991. Family Law Act 1996 has developed the law in relation to occupation and non-molestation orders. Equity may be able to bear children, as Lord Denning asserts; but the cohabitation cases considered in this article have hardly taken the law any further forward when it comes to adjustment of property owned by unmarried cohabitants.


Adjusting shares in jointly owned property


Secondly, a trust may be constructed which alters the legal entitlement where parties own property jointly, but one seeks a differential share. There the court can construct a trust which alters the legal entitlement. Thus in Stack v Dowden a property was held in the parties joint names, which had been bought by them from the proceeds of sale of a property originally owned solely by Ms Dowden. They had brought up their four children in the house. This and other factors lead the Court of Appeal to award Mr Stack 35%, a division upheld by the House of Lords (for reasons explained further later).


The constructive trust must be contrasted from proprietary estoppel (with which it shares certain features: eg detrimental reliance). Proprietary estoppel enables the court to hold that, where there has been a promise upon which a party has acted to their detriment, then the promissor should be estopped from denying the existence of the promise and from denying the benefit that was promised by it. The constructive trust vests a beneficial interest in the claimant, that is to say a trust interest in property which can be enforced by an order for sale under TLATA 1996 s 14. Proprietary estoppel will not necessarily result in any proprietary interest, but may result in a damages claim (akin to breach of contract), depending on the nature of the promise and the extent of the detriment.


Defining the shares


Where the court declares a constructive trust but determines that it should be in shares other than equal, how are the shares defined? Jones v Kernott [2011] UKSC 53 [2012] 1 FLR 45 the Supreme Court attempted to explain their earlier Stack v Dowden.


The main factor in a convoluted background in Jones v Kernott was that the couple’s jointly owned property provided a home for J and two children of the relationship; and that liquidation of a life policy belonging to both of them had enabled K to buy his own separate property. These facts enabled the court to infer an intention to alter the legal title to a trust which reduced K’s share to 10% of the property. Lord Kerr summarised their common ground between the justices as, first, that a the common intention may be inferred objectively from the parties’ conduct; or, failing that, that each of the couple is entitled to such share as the court considers fair; and in considering fairness the court must consider the ‘whole course of dealing between the parties’.


Lady Hale and Lord Walker explained these propositions as:


[47] In a case such as this, where the parties already share the beneficial interest, and the question is what their interests are and whether their interests have changed, the court will try to deduce what their actual intentions were at the relevant time. It cannot impose a solution upon them which is contrary to what the evidence shows that they actually intended. But if it cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time. This is a fallback position which some courts may not welcome, but the court has a duty to come to a conclusion on the dispute put before it.


Need for law reform


In truth, property law for cohabitants has only moved fractionally since Lord Denning’s comments in Eves v Eves. Some of the more depressing aspects of this area of law include


  • The failure of political parties to recognise the fundamental need for thoroughgoing reform to recognise the modern attitude to unmarried families and their children;
  • The law’s failure to recognise that the fact that one partner reposes trust in the other must be recognised fully by the law; and
  • That couples do not necessarily sit down before marriage or before starting their relationship and meticulously plan their financial futures as was recognised by the very human words of that human Chancery judge Waite LJ in Midland Bank plc v Cooke [1995] 2 FLR 915, CA – over twenty years ago – when he said (at 927):


Equity has traditionally been a system which matches established principle to the demands of social change. The mass diffusion of home ownership has been one of the most striking social changes of our own time. The present case is typical of hundreds, perhaps even thousands, of others. When people, especially young people, agree to share their lives in joint homes they do so on a basis of mutual trust and in the expectation that their relationship will endure. Despite the efforts that have been made by many responsible bodies to counsel prospective cohabitants as to the risks of taking shared interests in property without legal advice, it is unrealistic to expect that advice to be followed on a universal scale. For a couple embarking on a serious relationship, discussion of the terms to apply at parting is almost a contradiction of the shared hopes that have brought them together….


Urgent law reform is needed to make cohabitation property law fair, especially – but not only – where couples have children and where one (generally the mother) gives up a career or time at work to look after the couples’ children.


Domestic Violence and Matrimonial Proceedings Act 1976 as new law


In a judgment (speech in House of Lords) in Davis v Johnson (9 March 1978; ) [1978] UKHL 1, [1979] AC 264 at 348 Lord Scarman explained the remedies provided by Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA 1976) s 1; and then, he defined domestic violence for the purposes of the Act:


… Conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction — actual, attempted or threatened — is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.


Lord Scarman was a pre-eminent family lawyer from a time when children law was hardly regarded as a separate discipline (think Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA;  A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948, (1981) 2 FLR 222; Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224; Re E (A Minor) (Wardship: Court’s Duty) [1984] FLR 457 for a flavour of his children law work).


Non-molestation orders: a new family law remedy


Before the quote above, Lord Scarman (who gave the fifth speech) had set out the text of s 1(1) of the Act (still no mention of domestic violence or domestic abuse – just of ‘molesting’ a party:


(1) Without prejudice to the jurisdiction of the High Court, on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely—

(a) a provision restraining the other party to the marriage from molesting the applicant;

(b) a provision restraining the other party from molesting a child living with the applicant;

(c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included;

(d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home, whether or not any other relief is sought in the proceedings


Lord Scarman explained s 1(1) as follows:


Subsection (1) enables a party to a marriage to make application to a county court. It is without prejudice to the jurisdiction of the High Court and it empowers a county court (any county court, whether or not invested with divorce jurisdiction) to grant an injunction “whether or not any other relief is sought.” Clearly the subsection provides a new remedy additional to, but not in substitution for, what already exists in the law.


Section 1(2) applied s 1(1) equally to a couple who were not married; and references to matrimonial home were to be construed accordingly.


Non-molestation in 1996; but still no domestic violence definition


And so, in 1975-6, a new family law remedy was born in the 1976 Act. It was intended to cover both the married and the unmarried, and their children: the free-standing (‘whether or not any other relief is sought’) non-molestation injunction. This is the remedy which – for today’s purposes – is reproduced in Family Law Act 1996 s 42(1):


42 Non-molestation orders

(1)In this Part a “non-molestation order” means an order containing either or both of the following provisions—

(a)provision prohibiting a person ( “the respondent”) from molesting another person who is associated with the respondent;

(b)provision prohibiting the respondent from molesting a relevant child.


The 1996 still avoided a definition of ‘domestic violence’: the rest of s 42 deals with procedural matters; whilst earlier sections of FLA 1996 had dealt with occupation orders.


The charming authors of Legal Aid Sentencing and Punishment of Offenders Act 2012 attempted a definition of ‘domestic violence’ which is tucked away at Sch 1 para 12(9):


‘domestic violence’ means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;…


Contact practice direction and domestic abuse


In Family Procedure Rules 2010 PD12J Child Arrangements & Contact Orders: Domestic Violence and Harm those who draft Family Procedure Rules 2010 and their accompanying practice directions have given us as a definition of domestic abuse – but only in relation to child contact. Para 4 (I set this out in full):


‘domestic abuse includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;…


In addition the terms ‘abandonment’, coercive behaviour’, controlling behaviour’ and ‘ill-treatment’ are further defined.


A practice direction as law


The first comment on this must be to recall that a rule, still less a practice direction, cannot change the law (Re Grosvenor Hotel, London (No 2) [1965] Ch 1210, CA approved by Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 at [27]). The law is what was explained by Lord Scarman in Davis v Johnson. And anyway what does the practice direction add to what was said by Lord Scarman 40 years ago?


One problem with any definition is that the more extensive you make it, the weaker it is: detail only suggests more ways in which a person can wriggle round it. That is the beauty of Lord Scarman’s definition; and as law it applies to a much wider set of statutory circumstances (FLA 1996 s 42; children proceedings generally (ie not only contact); and occupation orders).


The practice direction is a lesser form of law, and priority when advice is given or legal aid applied for, should be given to Lord Scarman (with a nod, perhaps, to LASPOA 2012 Sch 1).

Evidence of vulnerable witnesses

(1)        AM (Afghanistan) v Secretary of State for the Home Department


Fair assessment of vulnerability


As the report (with draft regulations attached) of Vulnerable Witnesses and Children Working Group (‘VWCWG’) continues to rot in the Lord Chancellor’s in-tray – or its resources implications to be embroiled with some Treasury austerity sub-committee – three cases concerning vulnerable witnesses and child law have been reported recently.


The first is an immigration case, but one which concerns a 15 year old Afghan asylum seeker and the assessment of his credibility in the administrative appeals tribunals. The Court of Appeal was unimpressed as to how he had been dealt with.  In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 (27 July 2017) the court commented on the treatment of evidence of child and vulnerable witnesses and held that a First-tier Tribunal (‘FtT’) ‘did not properly consider the impact of the appellant’s age, vulnerability and the evidence of [his] significant learning disability’ ([18]). They sent the case back for reconsideration. The Lord Chancellor was given permission to intervene. The main judgment (with which Gross and Underhill LJJ agreed) was given by President of the Tribunals (‘Ryder LJ’). All parties and the court agreed that the appeal should be allowed.


Asylum application by 15 year old Afghan


AM’s father was a member of the Taliban. After the father’s death AM travelled across Europe to UK and had claimed asylum. He was beaten up by Afghan police before leaving, and was threatened by them and by the Taliban in Afghanistan. He had a real fear of persecution.  It was said that he has mental health and psychological difficulties. The Secretary of State refused him asylum but granted leave to remain till 17½. Reasons for this included that his evidence was not credible.


The tribunal paper included a psychologist’s report which the FtT judge said had only been ‘drawn to his attention’ after the hearing. That said Ryder LJ was not true and was, in any event, ‘a wholly inadequate response to the content of the report’ which included ‘opinions about the appellant that were relevant to procedural fairness’ ([12]). AM’s appeal was rejected as was his appeal to the Upper Tribunal (‘UT’).


Ryder LJ considered that the psychologist’s opinion for the FtT was ‘appropriate’; and the FtT judge was not entitled, ‘effectively’, to ignore ([13]) them. He therefore concluded:


[16] In like manner to my conclusion at [13] I have come to the firm view that the UT judge took no sufficient steps to ensure that the appellant had obtained effective access to justice and in particular that his voice could be heard in proceedings that concerned him.  Procedurally, the proceedings were neither fair nor just.  That was a material error of law. The appellant was a vulnerable party with needs that were not addressed….  The parties agree.


Credibility and objective evidence


Central to the court’s view of the tribunal’s assessment of evidence was that the FtT judge looked at what he regarded as the ‘credibility’ of AM, rather than considering his vulnerability and looking at to other available ‘objective evidence’ first. He had an ‘obligation’ to ‘give precedence and greater weight to objective evidence and indicators of risk’ to AM, rather than to his personal credibility. These evidential factors must be reviewed ‘in light of [AM]’s age, vulnerability and learning disability’ ([19]). Had the tribunal properly considered its own practice direction and rules this error and the importance of AM’s age would have been clear to it.


The FtT and the parties are required to ensure that an appellant is able to participate fully in the proceedings. There is a flexibility and a wide range of specialist expertise which the tribunal can use to deal with a case fairly and justly.  Within the Rules themselves this flexibility and ability to override formality is made clear, said Ryder LJ. If this is not done there is a risk that any decision made by a tribunal will be ‘unlawful’; and this is especially so where – as here – the welfare of a child is in issue.


Ryder LJ reviewed the available tribunal practice directions on dealing with ‘vulnerable adults and sensitive witnesses’ ([31] and [32]): ‘failure to follow them will most likely be a material error of law’ ([30]).



(2)        Carmarthen County Council v Y


Evidence of an incapacitated witness


Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017) relates to a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings). Two immediate problems arise. It is not clear till late in Mostyn J’s judgment what the primary application before the court is; though the preliminary facts issue is summarised as:


[1] … The facts in dispute are whether, or not, A repeatedly raped his daughter, Y, more than 20 years ago when she was under 16. It is said that the abuse continued after she turned 16.  A strongly denies the accusation. His wife B says that the allegation is impossible to believe, as does Y’s sister C. Y herself suffers from mental illness and has not participated in the trial. Her counsel take a neutral stance in relation to the allegations, as does the [children’s guardian].  The local authority submits that the accusation is true.


But to what application do these facts relate (the heading of the case refers to a child Z)? Z is introduced half way through the judgement at [24]. It becomes clear at [36] and [37] that she was born on 25 October 2011 and that she is the daughter of Y and therefore the grand-daughter of A. By the end of the judgement the implication that there are care issues in relation to Z becomes clear.


This might have been resolved by the second problem. Mostyn J tells the reader:


[4] For an exhaustively full account of the background reference should be made to the chronology prepared by junior counsel for the local authority, which has left no stone unturned. I am grateful for the preparation of that very useful document.


But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at [16]). In law, there are real question on this (see eg ‘Release of court hearing documents’: ). As matters now stand ‘reference’ cannot now be made to the ‘useful document’. Both problems remain.


Issue of law: ‘a probability of 51%’


The issue of law relates to Y’s evidence. Such was her mental state that she could not be called at court; not be cross-examined on what she said on behalf of her father A (who was joined s a party in the proceedings). Such was the unreliability of what Mostyn J saw, he held that A could not be required to answer Y’s allegations, and that what she said should be treated as having not happened:


[44] The decision of the House of Lords in Re B (Children) [2008] UKHL 35 confirms what we all already knew, namely that if an allegation in relation to a past (as opposed to future) fact or event is not proved to a probability of 51% then it is treated as not having happened: see Lord Hoffmann at paragraph 2. The court may feel that there is a not fanciful (im)probability, say 25%, of the event having happened, but that mere suspicion, for that is all it is, entirely falls by the wayside….


That this evidence was from a vulnerable witness (though she was no longer a child) and that therefore whether it should have been seen in the light of other objective evidence of her credibility (if there was any: her mental state might be part of such a question), in accordance with AM (above) was not considered by Mostyn J. In fairness that decision was only handed down a couple of days before Mostyn J’s judgment. However, in AM at [19] Ryder LJ referred to older Court of Appeal authority (which would have been available to Mostyn J) namely Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367.


In Mibanga the Court of Appeal stressed the importance of reference to expert evidence to assist with an objective view of credibility. In that case Wilson J (sitting in the Court of Appeal and with whom Ward and Buxton LJJ agreed) said:


[24] It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact-finder’s function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant’s evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence….


Mostyn J says he read a massive amount of evidence. On the information of his judgment it is not possible to say what specific medical evidence in relation to Y that included; and therefore it is not possible to assess to what extent – in Mibanga and AM terms – he assessed Y’s credibility. He says first:


[6] As stated, Y has not given oral evidence. She is presently detained in a psychiatric hospital under the Mental Health Act. There is compelling, unchallenged, medical evidence that it would be very harmful for her to give oral evidence in court. A therefore has not had the opportunity of confronting his principal accuser, nor has the court had the opportunity of assessing under cross-examination the reliability of the evidence deriving from her.


Later in his Judgment Mostyn J says:


[40] In February 2016 Y was sectioned. She has been in a psychiatric unit ever since and is under close supervision. Her condition is truly pitiful in that she seems to wish to engage in self-harm at almost every opportunity. As I have stated above, the medical evidence is very clear – for her to give evidence or to participate in the proceedings could aggravate her condition considerably.


No more detail of the evidence or its assessment of Y’s credibility is attempted by the judge; nor, for example, does he ask why her mental capacity may be affected as it now is. He did not review how a witness in Y’s position might have been dealt with in the analogous position dictated for criminal trials under Youth Justice and Criminal Evidence Act 1999 Pt 2 (though it is likely he was not referred to that Act).



(3)        H v D (Appeal – Failure of Case Management)


A right to cross-examine?


The title of H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J gives a clue as to what is coming. In a convoluted series of hearings concerning a contact dispute, the first instance judge had attempted to protect the mother from direct cross-examination by the father of their child.


Peter Jackson J referred early in his judgment to the following:


[6] Where questioning by the court is for some reason not possible, the situation of the alleged victim may be entirely unsatisfactory: see for example the recent observations of Hayden J in Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) at 57-63.


Neither he nor Hayden J (in Re A) seems to have been referred to the Court of Appeal case of Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding) [2016] 1 FLR 754, where Lord Dyson MR said in terms that if a judge considers that parent B should not cross-examine the other (A),  then the judge must make do and conduct the questioning of A for B (Matrimonial and Family Proceedings Act 1984 s 31G(6)) (and see per Lord Bingham CJ in R v Brown (Milton) [1998] 2 Cr App Rep 364 cited by Lord Dyson at [55]).


Peter Jackson J explains that in August 2015 – yes, 2015 – the matter was allocated to HHJ Kushner QC.  Her first task, said the judge, was to conduct a hearing of the mother’s allegations which were likely to have a strong effect on the welfare decision, whether proved or not. He went on: ‘[10] A broad survey of the events over the past two years makes very concerning reading.  It would be no exaggeration to say that practically no progress has yet been made;’ and he then lists 10 examples of why he was concerned at the lack of progress.


At the conclusion of all this, the circuit judge ordered that the father be permitted to cross-examine the mother. She then appealled against this decision; and, in the course of the appeal, advance an ‘additional ground of appeal, based upon the general failure of case management’.


Peter Jackson J allowed the mothers appeal, and sent the case back to another judge in the court appealled from. Perhaps his most controversial finding was that the father had no right to ‘cross-examine’ or ask questions of the mother ([21], first bullet-point). Directions had already been given to which the father did not object. The court had made ‘repeated orders (five in all) requiring [him] to put his questions in writing’. The father did not comply, ‘no sanctions were applied, and it was not until 7 March 2017 (Day 2 of the hearing), that he eventually produced a list of questions’ ([10](ii)). In fairness to Peter Jackson J, he perhaps treated that direction as sufficient to deal with F’s ‘right to cross-examine’.