A family case involving allegations of controlling and coercive behaviour came before at least 15 judges, the Court of Appeal has revealed in a judgment highlighting the importance of judicial continuity.

In R v P (Children: Similar Fact Evidence), the court set aside a case management decision to exclude evidence in family proceedings ahead of a fact-finding hearing.

The case concerns a father’s application for contact with his two young children. The mother opposes contact, alleging that the father subjected her to extreme coercive and controlling behaviour, and sexual abuse including rape. To support her case, she wanted to rely on evidence which she argued showed similar coercive and controlling behaviour by the father towards another woman. The evidence was excluded.

The father began proceedings in October 2017. Lord Justice Peter Jackson said: ‘It is unnecessary to describe the extremely difficult procedural history in full. It is enough to say that there has unfortunately been no judicial continuity, with the case coming in front of at least 15 judges, that the parents have both been unrepresented at times, that the papers that were before the judge ran to 1,600 pages, that the mother now has an intermediary, and that a fact-finding hearing listed [this month] was the sixth occasion on which such hearing had been listed. It is not at all surprising that the judge, who was new to the case, was determined that that hearing should go ahead if possible.’

The father’s relationship with the other woman ‘was played out in an unsatisfactory way against repeated attempts to hold a fact-finding hearing’, Jackson LJ said. Last November the matter came twice before another deputy judge, whose order did not relate to the question of the disputed evidence. Jackson said the ‘procedural muddle’ arose in part from a lack of judicial continuity.

When the matter came before a judge in a remote hearing in June, ‘there were substantial difficulties in establishing connections, so that the hearing started about two-and-a-half hours late with the mother’s counsel attending by telephone. By that stage, only half an hour of hearing time remained’.

Jackson LJ said the father was aware of the allegations for over a year and the allegations were contained in professional reports that the court directed should be gathered.

He said: ‘Applying these principles, it is clear that the judge’s decision cannot stand. No doubt, at least in part because of the difficult circumstances in which the hearing was taking place, the necessary analysis concerning whether the disputed evidence should be admitted was simply not carried out. Moreover, the judge was mistaken (as was the district judge in September 2019) about the stance that had been taken by the court previously.’

Jackson LJ set aside the family court’s order. The case was reallocated to High Court level ‘because of the history of the case and the importance of the underlying issues’.

Lord Justice Hickinbottom and Lord Justice David Richards agreed.

Maggie Jones, instructed by Duncan Lewis, represented the appellant mother. Tom Wilson, instructed by Freemans, represented the respondent father.