Bloomsbury Family Law Briefing: September Teaser

Case summaries

Re D-S (Contact with Children in Care: Covid-19) [2020] EWCA Civ 1031 (4 August 2020) – Mother’s appeal for contact in contact in care proceedings, rejected by the judge, was allowed; but no order because parties had agreed contact. On contact with children in care, the court must form its own view, however influential the professional view of the local authority may turn out to be.

OG v AG [2020] EWFC 52 (29 July 2020), Mostyn J – Adjustment of costs orders both ways – mostly against H – for litigation conduct; and for W’s failure to negotiate reasonably once disclosure was complete: the new FPR 2010 PD28A, para 4.4 considered at [31].

R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 (18 August 2020) – Similar fact evidence permitted by Court of Appeal (see article below).

Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) (20 August 2020), Martin Spencer J – Expert evidence of claimants only was considered by the court. It was not challenged in cross-examination. The judge was not therefore entitled to disregard it. If a report is uncontroverted, the adjudication role of the court falls away.

Newman v Southampton City Council & ors [2020] EWHC 2103 (Fam) (5 August 2020), Roberts J – Journalist’s application for entire disclosure of the court file was refused; limited release of material permitted only.

Court control of similar fact evidence

Case management and court control of evidence in the light of an application to adduce similar fact evidence was at the root of the Court of Appeal allowing a mother’s appeal in R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 (18 August 2020). A father (F) had applied for contact, where he had not seen his children since the couple’s separation. Their mother (M) was alleging serious coercive behaviour (including lying to her parents and alienating her from friends and family). M’s evidence appeared to be corroborated by similar fact allegations as to F’s propensity to coercive behaviour in a later relationship with another married mother, N. on a case management appointment the judge refused to allow similar fact evidence from social workers (the court had already ordered two welfare reports – which were amongst the court papers – respectively in relation to the children of M and F and of N’s children), and from N’s children’s father and her parents.

M’s appeal was leap-frogged to the Court of Appeal by Cohen J, when he gave M permission to appeal (FPR 2010, r 30.13) in the light of the issues involved. The appeal turned on the extent to which a court could, or should, control evidence (see [23] and [24]):

  • How should a case management judge deal with similar fact evidence in its control of evidence: FPR 2010, r 22.1?
  • Was the similar fact evidence relevant to the issues in the instant case, and, if so, should it be admitted in the interests of justice?
  • If similar fact evidence was to be admitted, to what extent was it hearsay and what rules applied as to is acceptance as evidence and weight to be given to it in children proceedings (eg Civil Evidence Act 1995, s 2; FPR 2010, r 23.2; Children (Admissibility of Hearsay Evidence) Order 1993)?

In M’s case, according to these principles, was the similar fact evidence sufficient for the court to treat it as relevant to one or more of the issues? Yes, said the Court of Appeal, it was. M’s appeal was allowed. F’s application was put back for urgent case management by a Family Division judge.

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

David Burrows

Written by David Burrows

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