Fairness in Fact-Finding Hearings: Coercive Control and Threshold Criteria under Section 31 of the Children Act 1989

Introduction

The case L (Fact-Finding Hearing: Fairness) ([2022] EWCA Civ 169) adjudicated by the England and Wales Court of Appeal (Civil Division) on February 17, 2022, represents a significant development in family law, particularly concerning the fairness of fact-finding hearings in care proceedings. The central issue revolved around whether the process employed by the recorder to ascertain that the threshold criteria under Section 31 of the Children Act 1989 were satisfied was conducted fairly, especially in light of allegations of coercive control within the family dynamic.

The parties involved included L, a two-year-old child; her parents, referred to as the mother and Z (the father); and other related parties such as private law litigants X and Y, who are the fathers of L's siblings. The local authority's children's services department had been engaged with the family due to concerns about Z's behavior, including coercive control, domestic abuse, and substance misuse.

Summary of the Judgment

The recorder initially proceeded with a comparison of the local authority's threshold document against the evidence presented. Despite objections from Z and the mother regarding the fairness of the process—particularly the absence of key witnesses—the recorder found sufficient grounds to continue with a fact-finding hearing. The court concluded that Z's behavior amounted to coercion and control over the mother, thereby satisfying the threshold criteria under Section 31. Consequently, the proceedings were adjourned for further risk assessment, while private law cases concerning L's siblings proceeded with separate orders.

Analysis

Precedents Cited

The judgment referenced several key cases that influenced its outcome:

Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10: Affirmed that judges can make findings beyond the local authority's schedule of proposed findings, provided they are securely founded in evidence and do not compromise procedural fairness.
Re A (Applications for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11: Emphasized the need for the local authority to establish a clear link between the allegations and the threshold criteria, especially concerning emotional harm.
Re W (A Child) [2016] EWCA Civ 1140: Highlighted the importance of procedural fairness when judges make adverse findings not directly presented during hearings.
Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448: Provided guidance on handling coercive control within family proceedings, advocating for thorough examination of behavioral patterns rather than isolated incidents.

These precedents collectively underscored the judiciary's discretion in fact-finding while maintaining rigorous standards for fairness and evidence substantiation.

Legal Reasoning

The recorder's legal reasoning hinged on several key principles:

Discretionary Authority: Judges are permitted to make findings beyond the local authority's initial submissions if the evidence supports such conclusions.
Pattern of Behavior: The court was particularly attentive to the cumulative impact of Z's coercive and controlling behaviors, which is more indicative of abuse than isolated incidents.
Hearsay Evidence: While the local authority relied on hearsay, the recorder deemed the corroborating written and oral evidence sufficient to validate key allegations.
Opportunity to Challenge Evidence: Even though certain witnesses were unavailable, the court found that the parties had the opportunity to address and challenge the evidence presented.

The judgment meticulously evaluated whether the accused's conduct resulted in L suffering or being at risk of significant harm, thereby aligning with the statutory requirements under Section 31.

Impact

This judgment reinforces the judiciary's role in proactively ensuring the protection of children's welfare by allowing fact-finding hearings to delve deeper into behavioral patterns like coercive control. It sets a precedent for future cases where the court may need to assess complex family dynamics beyond the confines of initial threshold documents. Additionally, it emphasizes the necessity for local authorities to present clear, evidence-backed cases to meet legal thresholds, thereby potentially elevating the standards of evidence required in family law proceedings.

Complex Concepts Simplified

Section 31 Threshold Criteria

Under Section 31 of the Children Act 1989, the threshold criteria must be met for the court to make specific types of orders (e.g., care or supervision orders). This includes demonstrating that a child is suffering or likely to suffer significant harm attributable to the care provided or likely to be provided.

Fact-Finding Hearing

A fact-finding hearing is a process where a judge examines the evidence to determine the facts of a case. In family law, it helps establish whether the necessary legal thresholds are met for intervention by authorities.

Coercive Control

Coercive control refers to a pattern of behavior by one person that seeks to dominate or manipulate another. In the context of family law, it can significantly impact the welfare of children involved.

Conclusion

The judgment in L (Fact-Finding Hearing: Fairness) underscores the judiciary's commitment to protecting children's welfare through meticulous and fair fact-finding processes. By recognizing patterns of coercive control and ensuring that threshold criteria are adequately met, the court reinforces the legal framework designed to safeguard vulnerable children. This case serves as a critical reference point for future family law proceedings, highlighting the balance between judicial discretion and the imperative of procedural fairness.