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Criminal law and family proceedings

Police photo iStockphoto standard 146x219What place does criminal law have in family proceedings? Mark Cooper reports on a Court of Appeal ruling.

Although dealing with an incident leading to death, the principles in R (Children) [2018] EWCA Civ 198 apply to all cases where there are parallel criminal and family proceedings.

Facts

M and F had separated. M returned to the former matrimonial home to visit the children aged 10 and 7. During an argument F inflicted a fatal stab wound to M’s neck after M had caused injury to F and a child with the knife. F was acquitted of all criminal charges.

Just before the finding of fact hearing in the care proceedings, the LA amended its threshold document and F’s legal team appreciated for the first time that the LA were seeking findings based on the criminal evidence and that was all to be released into the care proceedings.

F’s lawyers applied for more time to evaluate the huge quantity of criminal evidence. Application refused. In her judgment, Theis J found that F had used “unreasonable force” and “unlawfully killed” M and made reference to criminal principles in her judgment including the criminal defence of “self-defence”.

On appeal the two main issues in the case were:

(a) the extent to which the family court should import elements of criminal law into a fact-finding hearing in child care proceedings; and

(b) whether the limited time allotted to F’s legal team to prepare the case amounted to Article 6 “unfairness”.

McFarlane LJ gave the leading judgment (with Gloster LJ dissenting on some aspects):

(a) Criminal law has no place in a care fact finding hearing, which has as its focus the welfare of the children rather than the guilt or not of an adult (see also Hedley J A Local Authority v S [2004] EWHC 1270 (Fam)).

(b) It is fundamentally wrong for the Family Court to be involved in an analysis of factual evidence, based upon criminal principles and concepts, in proceedings relating to the welfare of children.

(c) The timetable imposed on the F’s advocates was untenable and therefore in breach of Article 6.

(d) Judgments in family proceedings should avoid language which has a bespoke meaning in the context of the criminal jurisdiction, e.g. “self-defence”, “reasonable force”, “loss of self-control”. Phrases such as “inappropriate” or “proportionate” force may reflect judges findings in a particular case and avoid the risk of misunderstanding in expressing a finding based directly on criminal proceedings.

The appeal was allowed and a re-hearing was directed.

Mark Cooper is a barrister at St Ives Chambers. He can be contacted on 0121 236 0863 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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