K v W (fact-finding hearing: permission to appeal and adducing new evidence)
[2023] EWFC 292 (B)
D v R
24 February 2023
[2023] EWHC 406 (Fam)
High Court
A mom accused her husband of abuse, but the judge didn't follow special rules to protect her during the trial because she was a victim. The higher court said that was unfair, threw out the first decision, and sent the case back to be tried again properly.
Key Facts
- •Mother appeals Recorder Bradberry's order (23 September 2022) dismissing her domestic abuse allegations against the father.
- •Appeal granted permission on three grounds, two concerning FPR Part 3A and PD3AA compliance and one concerning Children Act 1989, section 98.
- •Case involves allegations of serious sexual harm and controlling/coercive behaviour.
- •Proceedings concerning father's application for contact with their 2-year-old child, X, have lasted over a year.
- •Mother used covert recordings as evidence, which were reviewed during her testimony.
- •Neither party's legal representative raised FPR Part 3A at any hearing; the court also failed to consider these provisions independently.
- •Mother reported worsening anxiety after giving evidence, claiming distress from the father seeing her remotely via camera.
- •The Judge's decision relied on inconsistencies in the mother's evidence without accounting for potential impact of her vulnerability as a domestic abuse complainant.
- •Appeal focuses on the failure to follow mandatory requirements of FPR Part 3A and the lack of a ground rules hearing.
Legal Principles
Appeal allowed if the decision below was wrong or a procedural irregularity resulted in an unjust decision.
FPR Rule 30.12(3)
Sets out grounds for appellate court to overturn a decision (error of law, undue weight given to matters, conclusions not supported by evidence, procedurally irregular process, unreasonable exercise of discretion).
B v B, Royal Bank of Scotland v Carlyle, Re S-W, G v G
FPR Part 3A and PD3AA provide for vulnerable persons' participation and evidence-giving in family proceedings.
FPR Part 3A, PD3AA
In domestic abuse cases, the court must assume diminished evidence quality and participation for victims, and consider participation directions.
FPR Rule 3A.2A, s 63 DAA
Defines domestic abuse and outlines abusive behaviors (physical, sexual, violent, threatening, controlling, coercive, economic, psychological, emotional).
s 1 DAA
Requires a ground rules hearing when a vulnerable party gives evidence to determine participation directions.
PD3AA para 5.2
Lists factors for considering participation directions (intimidation, mental/physical disabilities, nature of information, contentiousness, age, background, domestic circumstances, etc.).
FPR Rule 3A.7
Specifies available participation directions (preventing parties from seeing each other, live link participation, communication devices, intermediaries).
FPR Rule 3A.8, PD3AA
Highlights the importance of complying with FPR Part 3A to ensure fair trials for vulnerable witnesses.
A v A Local Authority, Re N
Delay in proceedings is inimical to a child's welfare.
section 1(2) Children Act 1989
Outcomes
Appeal allowed on grounds 1 and 2.
The court failed to comply with mandatory requirements of FPR Part 3A by not holding a ground rules hearing and not considering participation directions for the mother, a vulnerable witness due to domestic abuse allegations. This resulted in a procedurally unfair hearing.
Findings set aside.
The procedural irregularities rendered the hearing unfair and the conclusions reached unjust.
Case remitted to a different judge.
To ensure a fair rehearing with proper consideration of FPR Part 3A and the mother's vulnerability.