In our latest blog post, current 18 St John Street Family Team pupil Zara Nawaz analyses a recent High Court decision to grant an appeal against a judgment in private law proceedings.
M (A Child)  EWHC 3225 (Fam)
Mrs Justice Judd DBE
1st December 2021
Mrs Justice Judd, sitting in the Family Division of the High Court, granted an appeal against a fact-finding judgment in private law proceedings, emphasising the importance of the court complying with Rule 3A and PD 3AA.
In this article I will summarise the facts of the case, the judgment and comment on its application to practice.
In 2015, the mother was working as a ‘cam girl’ providing sexual services online to paying customers, one of whom was the father. After frequent online meetings, they met in person in 2016 when the father travelled from the UK to the mother’s home country in eastern Europe. Following this, a relationship developed and the pair spent time in both countries. After a period of separation, the relationship resumed with the mother moving to the UK in 2017 to live with the father; she became pregnant in 2018. In 2019, the mother and father separated four weeks after the birth of their daughter. Tensions arose thereafter regarding overnight contact and money.
In December 2019 the mother removed the child to her home country; the father made applications under the 1980 Hague Convention and the Children Act and the mother was ordered to return the child, which she did in February 2020. Subsequently, the mother applied for leave to remove and the father for a child arrangements order. The mother made allegations of domestic abuse, including three allegations of rape. She also alleged the father had an obsessive sexual compulsion/disorder and desires towards young girls and that he referred to their child abusively. The father alleged that the mother sought to control his time with their child and that she referred to the child by abusive names.
The fact finding hearing commenced on 30th November for four days on a hybrid basis. For the hearing, the parents produced a substantial amount of evidence which the judge considered. The judge had watched and listened to a large number of videos and recordings containing extensive and explicit content and considered in excess of 1,000 pages of documents. Among those giving evidence were the mother and father, neither of whom were physically present in the courtroom to hear the other’s testimony. This was on the basis that the courtroom was unable to accommodate more than four people at any one time, given the Covid restrictions.
Judgment at first instance
The allegations of rape and sexual abuse made by the mother were rejected and the judge found that she had made allegations to malign the father and improve her application to remove. The judge also rejected father’s allegation that the mother had sought to control his time with their child, stating it was the actions of an anxious first time mother. She did however state that the mother’s actions in removing the child from the jurisdiction had the potential to cause harm to the child as a result of a lack of contact with the father.
Grounds for appeal
In this matter, the appeal was brought on behalf of mother and permission to appeal was granted on two grounds:
- Ground 1: the absence of special measures sought or implemented for the mother at the fact finding hearing; and
- Ground 2: whether or not the judge balanced the evidence properly looking overall at the allegations.
Judgment and reasoning
“The function of an appeal against a fact finding decision is to determine whether the judgment is sustainable, nothing less.” EWHC 3225 (Fam) 
The appeal was allowed on both grounds and a retrial will be held before a High Court Judge from the Family Division. The following reasoning was given on each ground.
Within the orders, there was no reference to Rule 3A and PD 3AA governing participation guidance in respect of vulnerable witnesses, which the court is obligated to follow. Although the mother was represented throughout the proceedings, the obligation to consider her vulnerability is upon the court. Whilst it was accepted that respective counsel for the parents ought to have reminded the judge of this, a failure to do so would not relieve the court of the responsibility it has been given under the rules.
Rules 3A.4 and 3A.5 require the court to consider whether the mother’s participation in the proceedings was likely to be diminished by reason of vulnerability when giving her evidence. There can be no doubt that the mother came within the category of those who might be vulnerable, as someone who was alleging domestic abuse. In circumstances where the court is satisfied that a vulnerable party or witness should give evidence, paragraph 5.2 of PD3AA requires a ground rules hearing (or ground rules component of a hearing) before that person gives evidence. However, there was no application for participation directions or a ground rules hearing. Mrs Justice Judd stated “this was a case which cried out for participation directions and a ground rules hearing, not just for the sake of the mother, but for the integrity of the court process itself. The purpose of the rules and Practice Direction is to avoid the quality of the evidence being diminished.” [para 66].
Although it was inevitable that the mother would have to answer very personal questions, this could have been restricted to what was necessary for a fair trial. For example, during cross-examination, the mother was taken through explicit material from six years ago as a ‘cam girl’ to demonstrate her understanding of the meaning of some swear words. Had there been a ground rules hearing, a different way of achieving this goal may have been identified.
PD 12J applies in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse. This PD was considered to the extent that the court deemed it necessary to conduct a separate fact finding hearing in order to provide a factual basis for any welfare report and/or assessment of risk.
There were no special measures or support in place for the mother, a party who alleged she had experienced domestic abuse. Whilst it was not possible to know how the lack of special measures may have affected the mother, what can be said is that the judge did not find the mother a credible witness. She rejected the mother’s evidence on almost every point; she preferred the father who she found to be a much more impressive witness. On the facts of this case, Mrs Justice Judd accepted that “the failure to abide by the procedural rules in this case was so serious that the decision of the court cannot stand.” EWHC 3225 (Fam) 
Sufficient consideration was not given by the judge to the possibility that the mother might have been vulnerable in, or over-dependent on, the relationship.
The importance in considering vulnerability of a party is because a vulnerable person may not act in the same way as someone more independent or confident than if they are exploited or abused in a relationship. In her judgment, the trial judge did not give this matter serious consideration.
The case emphasises when it has been decided that a vulnerable party should give evidence, the court must consider whether the quality of that evidence is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make participation directions. It is important that prior to any hearing at which evidence for a vulnerable party is to be heard, there should be a ground rules hearing in order for the best evidence to be given. Whilst it is the duty of the court, it is also incumbent for the parties to ensure that appropriate directions are implemented to enable the best evidence to be given and for fair participation in the hearing. Nonetheless, although the mother was represented and no additional special measures were sought at the fact finding hearing, this did not defeat the appeal.
The attention of practitioners is drawn to not only Rule 3A and PD 3AA, but also to PD 12J, Rule 3A2A and the Domestic Abuse Act 2021, the latter two of which were not in force at the time of the fact finding judgment.
Although some consideration was given to PD 12J in that a fact finding hearing took place, it appears paragraph 19(j) of PD 12J was not considered by the trial court.
19. Where the court considers that a fact-finding hearing is necessary, it must give directions as to how the proceedings are 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. In particular it should consider –
(j) what evidence the alleged victim of domestic abuse is able to give and what support the alleged victim may require at the fact-finding hearing in order to give that evidence.
The above echoes the provisions in Rule 3A and PD3AA which the court are bound to follow.
The Domestic Abuse Act 2021, includes s63 which provides that where a person ‘is, or is at risk of being, a victim of domestic abuse’, the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A.
19th January 2022
For more information about Zara Nawaz, Fergal Allen and the Family Department at 18 St John Street Chambers please click the links above or contact a member of the family clerking team on 0161 278 8263 or via email email@example.com