Z v A Local Authority

This is the judgment of the Court to which we have both contributed.

The principal issue arising on this appeal in care proceedings concerning a little girl, L, is whether the process by which the recorder reached the conclusion that the threshold criteria under s.31 of the Children Act 1989 were satisfied was fair. The appellant, Z, who is L’s father, contends that certain of the findings made by the recorder, which went further than those sought by the local authority, were made after a hearing in which he did not have a fair opportunity to meet those allegations.

L’s mother has three children who we shall call J (a boy aged 6), K (another boy aged 4) and L (aged 2). The three children have different fathers, who we shall call respectively X, Y and Z. The local authority’s children’s services department has been involved with the family since April 2017 after an altercation between Y and Z, following which Z was convicted of assault. Thereafter there were allegations about cannabis misuse, anti-social behaviour and domestic abuse in the relationship between the mother and Z. The local authority became concerned that Z was exerting coercive control over the mother. Although the case was closed in 2019, it was re-opened in May 2020 following a referral by the housing department after an incident in which Z was said to have shown aggression during a telephone conversation with a housing officer. Other incidents followed, culminating in a further referral in September 2020 after J spoke to nursery staff about having witnessed Z assault a family friend and break a mirror. The local authority initiated pre-proceedings processes under the Public Law Outline and, in October 2020, J and K went to live with their respective fathers, X and Y, who each then started private law proceedings seeking child arrangements orders under s.8 of the Children Act. Within the proceedings relating to J, a prohibited steps order was made preventing the mother allowing any contact between J and Z save for contact supervised by the local authority.

An initial assessment of the mother and Z recommended that L be placed under an interim care order whilst remaining at home. On 5 January 2021, the local authority therefore started these care proceedings in respect of L. The initial schedule of facts on which the local authority asserted that the threshold for an interim order was crossed included the following allegations:

In the course of the proceedings, a parenting assessment of the mother and Z was completed. The conclusions were broadly positive. Z was observed to have a good attachment with all three children and his relationship with the mother was described as loving. The assessor added, however,

On 9 June 2021, the local authority filed its final evidence and care plan under which it proposed that L should stay in the care of her mother and Z with no order under s.31 but subject to a child protection plan.

On 16 June 2021, the local authority filed a revised threshold document, entitled “Schedule of facts the local authority allege in relation to threshold”, in the following terms:

Two further case management hearings were held dealing with a number of issues, including drug testing of samples provided by Z and police disclosure of information relating to incidents of alleged domestic abuse. At the first case management hearing on 7 July 2021, orders were made for the parents to file and serve their responses to the local authority’s threshold document prior to the commencement of the final hearing which was listed to start on 20 September 2021 and to last for three days. An order was also made for the attendance of various witnesses, and for there to be a meeting of advocates ahead of the final hearing to deal with the witnesses required for the final hearing and to complete a witnesses timetable.

At the second case management hearing on 25 August 2021 the local authority was given permission to file and serve a final amended threshold document by 1 September 2021 and for the parents to respond to that document by 10 September. It is unclear whether a meeting of advocates to resolve the issue of witnesses needed for the final hearing had taken place, but no further provision was made in the order for any other witnesses to attend than those who had been required in the earlier order.

The local authority did not file its final amended threshold document by 1 September. Nonetheless, on 10 September 2021, Z filed his response to the earlier threshold document in which he indicated he did not accept a number of the allegations made by the local authority.

On Friday 17 September 2021, the local authority filed a final version of the schedule of facts in relation to threshold, making minor amendments to the version filed in June, but in particular amending the particulars relating to the allegations of Z’s drug use and adding:

The next day, Saturday 18 September 2021, counsel served a position statement on behalf of Z for the final hearing. That indicated that Z disputed a number of the factual allegations in the local authority’s threshold document, largely in relation to domestic abuse of the mother. Z’s position statement also made the point that the threshold document was not compliant with guidance in case law, in particular that given by Sir James Munby P in Re A (Applications for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11, [2016] 1 FLR 1. Among other criticisms was the lack of a statement either from the housing officer referred to in sub-paragraph (c) of the threshold document or from the police officer to whom the complaint was made referred to in sub-paragraph (e).

On Sunday 19 September 2021, counsel for X served his position statement for the hearing. It was stated that X was neutral on the issue of threshold but, importantly for present purposes, the position statement went on to make a number of submissions concerning the relationship between the mother and Z, with a view to supporting the position that X’s son had settled in his father’s care and should not live with the mother full time. The points including the following,

In her final report, the children’s guardian agreed with the local authority’s position that there should be no care or supervision order with regard to L.

At the outset of the hearing on Monday 20 September 2021, the parties addressed the recorder as to the need for a fact-finding hearing in light of the agreements that had been reached between the parties. We have been provided with an agreed note of those submissions.

The argument focused on the approach identified by McFarlane J (as he then was) in A County Council v DP and others [2005] EWHC 1593 (Fam). At [16] – [17] McFarlane J stated:

In the course of submissions, counsel for the local authority, the mother and Z all resisted a fact-finding hearing taking place.

The local authority’s position was that it might struggle to establish that the threshold was met, in particular because an agency social worker who had previously been involved with the case, Ms. W, could not be located to give evidence because she had moved away and had not been warned that she might be needed to give evidence, either in the case management order of 7 July 2021 or as a result of any meeting of advocates to discuss witnesses. It was Ms. W to whom the mother was said to have made the statements set out in sub-paragraph (f) of the threshold document, and who had also recorded in her family assessment that the mother had told her that the account of abuse that she had given to the police a week earlier, as set out in sub-paragraph (e) of the threshold document, had been correct. In the course of argument the recorder raised what he termed the “concerning” relationship between the mother and Z, to which counsel for the local authority responded that “the perception of it is that it might be an abusive relationship”.

Counsel for the mother and Z both submitted that it would not be in the interests of the family to have an extended fact-finding hearing, that the local authority’s threshold document was “very problematic” and that it would be unfair to their clients if Ms. W was not available, because they would not be able to test her evidence as regards sub-paragraphs (e) and (f) of the threshold document. Neither counsel raised any concerns about the unavailability of the police officers to whom complaints had been made as alleged in sub-paragraphs (c) and (e) of the threshold document.

Counsel for X took a different line, arguing that efforts should be made to locate Ms. W, but that even if she could not be found, the hearsay statements recorded by her could still be put to the parents for comment. He also questioned why the local authority was concerned about demonstrating that the threshold had been met, given that it had filed a revised final threshold document only days earlier. Counsel for X also submitted, by reference to the paragraphs of X’s position statement set out above, that if the recorder found a coercive relationship existed between Z and the mother, then it would be surprising if there was no risk of harm to the children. None of the other counsel is recorded as having objected to that submission or taken the point that the final local authority threshold document no longer alleged that Z exercised coercion or control over the mother.

Having heard submissions, the recorder decided to proceed with the fact-finding hearing and gave a short judgment in which he set out his reasons, by reference to the factors identified by McFarlane J. We have been provided with an agreed note of that judgment. In it, under the heading “Interests of the child”, the recorder said:

With regard to the “evidential result”, the recorder noted that Ms. W was no longer employed by the local authority and not on the witness template to give evidence. He accepted, however, submissions made on behalf of X as to “the relevance and proportionality” of her evidence:

Under the heading “The prospects of a fair trial”, the recorder observed that the mother and Z had had the opportunity to file evidence, and were willing to give oral evidence:

The hearing then proceeded for three days with oral evidence from the social worker with current responsibility for the case, the mother, Z, X, Y and the guardian.

The local authority tried without success to locate Ms. W. The local authority was also unable to produce another social worker, Ms. P, notwithstanding that she had been listed as required to attend the hearing in the order of 7 July 2021. Ms. P had filed a statement which, among other things, stated that the mother had given her an account of events in late August 2020 consistent with that recorded in the police log and supporting the matters alleged in sub-paragraph (e) of the threshold document.

In the course of the oral evidence, the mother, Z and X were asked about incidents that went beyond the local authority’s schedule of facts relating to threshold. In particular, X gave oral evidence confirming the account in his position statement of an early morning request by the mother to accept at transfer of funds from her account to protect them from Z. The mother was cross-examined about this incident. She did not dispute X’s account, but said that she was concerned that Z might spend her money shopping for clothes rather than gambling.

During the hearing, the guardian informed the court through counsel that having heard the evidence, she had changed her mind and now proposed that L be subject to a supervision order.

After the end of the evidence, the hearing adjourned and submissions were then delivered, some in writing, others orally when the hearing resumed on Friday 24 September 2021. At our request, following the appeal hearing, we were sent copies of the written submissions, and an agreed note of those delivered orally.

In powerful written submissions circulated before the final day’s hearing, counsel for X criticised the local authority’s threshold document and the local authority’s failure to ensure that Ms. P attended the hearing. The submissions also criticised the fact that neither the police officer who had logged the mother’s complaints of abusive behaviour by Z against her in August 2020, nor Ms. W, had been produced to give oral evidence. However, counsel also very fairly noted that no other party at the case management hearing in July 2021 had identified any need for those two witnesses to be available.

The submissions on behalf of X then made a number of detailed and cogent points to the effect that the contemporaneous documentary records such as the police officer’s log and Ms. W’s notes were likely to be reliable and accurate. He submitted that the oral evidence of the mother when challenged on the contents of the records “was not persuasive”, and Z’s evidence had been “entirely lacking in credibility”. Counsel submitted that the only plausible explanation was that having told the police and professionals the truth whilst separated from Z, the mother had retracted her allegations for fear of the consequences after having reconciled with him. The written submissions concluded that if the court was satisfied of the truth of what the mother had told the professionals in August and September 2020, then the threshold was satisfied on the basis of a number of factors, the first of which was that “Z was trying to control everything [the mother] did and was excessively jealous”.

In written submissions also circulated prior to the final day of the hearing, counsel for the guardian confirmed that in light of the evidence given earlier that week, she now proposed that L be placed under a supervision order. She submitted that the threshold was met and expressed the view that the local authority had underestimated the risks in the household. The guardian’s submissions also suggested that the mother’s outright denial of allegations in her oral evidence indicated that there were issues of domestic violence and coercive and financial control within her relationship with Z. The guardian expressed concerns that the local authority seemed to have accepted the parents’ minimisation of the violence in their relationship and had not explored the issues of coercive control and Z’s gambling using money from the mother’s bank account.

At the hearing on the Friday, counsel instructed for the local authority conceded that the local authority’s threshold document was “not fully Re A compliant”, but argued that the court could nonetheless make findings and conclude that the threshold criteria were satisfied. She argued that, taking into account all of the evidence about domestic abuse, which included “at least potential for coercive control and behaviour”, the court could find that there was a likelihood of significant emotional harm to the children. The local authority held to the view, however, that no order under s.31 was required.

On behalf of the mother and Z, it was argued that, in so far as the local authority’s case was based on hearsay evidence from witnesses who had not been presented for cross-examination, it was insufficient to support the findings sought. It seems from the agreed note of submissions that both counsel expressly addressed what was described as the “coercive control issue”. On behalf of the mother, it was submitted that there was insufficient evidence of a pattern of behaviour and that “the detail in the cross-examination does not accord with a coercively controlling relationship”. Counsel for Z relied on a statement from Z’s previous partner that he had not behaved in a controlling way during their relationship and on the fact that there had been no recent allegation of such behaviour in his relationship with the mother.

In oral submissions, counsel for X referred to the points made in his written submissions and reiterated that whilst there was some force in the points made on behalf of the mother and Z about reliance on the hearsay evidence in the police log and Ms. W’s records, it was difficult to see how the mother could have been telling the truth in her evidence about those matters.

In his reserved judgment, the recorder started by summarising the case and the parties’ positions, reiterating his decision on the preliminary issue raised at the start of the hearing, and identifying the legal principles relevant to a fact-finding hearing. He then at [33] considered the complaint made about the threshold document. He acknowledged that some of the allegations “lacked specificity” and that in some instances there was a lack of any link “drawn between the factual allegation pleaded and the harm L has suffered or is at risk of suffering”. He continued:

At [41] the recorder cited following passage from the threshold document:

The recorder considered first the incident reported to the police by the housing officer on 5 May 2020. Having summarised the written and oral evidence put before him, he set out the following analysis:

The recorder then considered the evidence given by X and the mother about the incident, not included in the threshold document, about the request by the mother to transfer money to X’s bank account to protect it from Z. As indicated above, the mother agreed that she had made this request but said it was nothing to do with gambling but rather to prevent Z spending her money on clothes. The recorder again observed that he found the mother’s evidence unpersuasive, noting that she was unable to explain why the matter was so urgent as to require a message at 3 o’clock in the morning.

The recorder then turned to the incident on 27 August 2020 when the mother had called the police and, according to the police log, reported (a) that she had separated from Z after an argument and gone to stay with the maternal grandmother, (b) that Z had sent text messages demanding that she return L to the home and warning that there would be nothing left in the property and that he would report her to social services, (c) that the argument had occurred after Z had withdrawn all their money as he had a gambling addiction, (d) that she had refused to give him her mobile phone whereupon he had pushed her and taken the phone and used it to clear out the bank account, (e) that he smoked cannabis all the time, and (f) that she was concerned that he would try to take L, not because he particularly wanted her, but to punish the mother. The recorder noted that in her oral evidence the mother had resiled from the account she was reported as having given to the police, saying that there had been no real argument about the phone but rather “just a mild disagreement”. Z’s evidence had been to the same effect.

The recorder was not satisfied with the parents’ accounts because they failed to explain why Z had insisted on using the mother’s phone instead of his own or why, if there had only been a “mild disagreement”, the parties had then separated. He also rejected the mother’s explanation that the references to Z’s gambling and cannabis use had come from the maternal grandmother who was present during her conversation with the police, noting that the mother had also said in evidence that she had corrected any mistaken information given by the grandmother. This pointed to a conclusion that her mother’s account as recorded in the police log was accurate. The recorder added that the accuracy of that account was supported by the account given to Ms P, as recorded in her statement filed in the proceedings, and to Ms W, as recorded in her family assessment.

At [74] the recorder concluded:

Next, the recorder dealt with evidence concerning another incident not included in the threshold document – referred to as the “mirror” incident – which had come to the attention of children’s services following a report of something said by J at his nursery on 1 September 2020, to the effect that a mirror had fallen off the wall and Z had shouted at and punched a female friend who was visiting the house. The mother had given an account of this incident to Ms W in the course of the family assessment in which she was recorded as saying that Z had shouted at the friend that the children were crying, that the friend had called the police, but that Z had not punched the woman. In her oral evidence, however, the mother gave a different version, aligning herself with the account given by Z who denied he had shouted or been aggressive. Having considered other evidence about this incident, the recorder concluded that the mother’s account to the social worker was more plausible and that Z had behaved aggressively and shouted, frightening the children and causing them to cry. He did not find, however, that Z had punched the friend or broken the mirror because J’s account to the nursery staff was inconsistent with other evidence.

The recorder then considered the evidence about events at the start of September 2020. He recited the evidence about the allegation that Z had called the mother a “rat” and concluded that he had indeed called her a “snitchy little rat” because she had called the police. He then referred to another part of Ms W’s report in which she had recited conversations she had with the mother and Z on or about 7 September. Ms W had recorded that the mother had told her that she had been messaging Z all weekend despite previously saying that she wanted to end the relationship, that she had allowed him back into the house, that he had taken L away and that, at the time of her conversation with Ms W, the mother did not know where he and L were. Ms W had recorded that during her conversation with Z he had been abrasive and uncooperative, would not tell her where he and L were, and had said that he might not bring her back and that she would have to get a court order. The recorder continued at [90]:

The recorder said that he rejected Z’s evidence that the reason he had asked for L to be returned to his care was that he had not seen her for some time and was concerned about her welfare. He added:

Having considered the individual incidents covered in the evidence, the recorder continued:

One element of the recorder’s analysis related to Z’s treatment of the mother’s bank account. Although as set out above, the local authority had referred to the mother’s complaints to the police about Z’s use of her money for gambling, his accessing the bank account had not been expressly mentioned in the threshold document. It had featured, however, in the evidence and this led to the recorder’s findings at [95] to [97] in the judgment:

The recorder then considered the other proposed findings set out in the local authority’s threshold document. He refused to make the finding that the mother had not engaged with services, holding that “the facts as pleaded do not get anywhere close” to crossing the threshold. He then made a limited finding about Z’s cannabis use and the finding relating to his earlier conviction for battery.

At [108] he set out his conclusion on whether threshold under s.31 had been crossed:

The recorder then proceeded to consider what order to make in the light of his findings, by reference to the welfare checklist in s.1(3). At [114] to [115], when considering s.1(3)(e) (“any harm which [the child] has suffered or is likely to suffer”), he said:

After considering the other factors in the checklist, the recorder concluded that without such an assessment he could not come to a safe conclusion as to the appropriate care plan and order for L. He therefore adjourned the care proceedings to a further case management hearing and invited the parties to make a further application for an expert risk assessment under Part 25 of the Family Procedure Rules. The private law proceedings concerning J and K were concluded with separate orders under which each boy is to live with his father and have defined contact with the mother. The prohibited steps order restricting contract between Z and J was discharged.

The schedule of findings made by the recorder was in the following terms:

Applications for permission to appeal by the mother and Z were refused by the recorder. On 18 October 2021, Z filed notice of appeal to this Court. On 22 November, permission to appeal was granted on two grounds:

Under the first ground of appeal Mr David Sharp on behalf of Z accepted that a court is not obliged to adhere slavishly to the local authority’s threshold document. He submitted, however, that the court will need very good reasons to depart from the way the authority has framed its case. Where a judge wishes to make findings not sought by the local authority, he must ensure that they are securely founded in evidence and the fairness of the fact-finding process is not compromised. Both at common law and under Article 6 of ECHR, it is an inherent feature of a fair trial that each party is given a reasonable opportunity to present his case and respond to the case put by the other side. In support of this argument, Mr Sharp cited, amongst other cases, Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145 and Re A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947 [2021] 1 FLR 755, considered below.

Mr Sharp submitted that the findings made in this case ranged well beyond the threshold document, in particular the findings relating to the mother’s request to X to allow her to transfer money to his account, the “mirror” incident, Z’s aggressive and threatening behaviour after the mother left the home with L in August 2020, Z’s refusal to disclose L’s location to the social worker after removing her from the mother, and the conclusion that Z’s conduct amounted to a pattern of coercive control. He argued that, had the parents known that the court would be minded to make these findings, they would have sought to adduce further evidence. By way of example, he submitted that, had the parents known of the possibility of the finding that the mother transferred money to X to prevent Z using it for gambling, they would have adduced bank statements and other evidence about their financial transactions.

Mr Sharp also submitted that, in making most of the additional findings beyond the threshold document, the recorder had relied heavily on hearsay evidence from witnesses who were not called about statements allegedly made by the mother, in particular the social worker Ms W. Mr. Sharp submitted that the requirement to call witnesses and require others to attend for cross-examination depends on knowing the findings which are likely to be made against you. He submitted that had the findings made by the recorder been included in the schedule of findings sought by the local authority, the parents would have insisted on Ms W giving evidence, and possibly in addition would have required Ms P, the housing officer and the authors of the police logs to attend the final hearing to be cross-examined. Mr Sharp submitted that the context in which this hearing went ahead was that the local authority had been clear for some time that it would not be seeking any order in respect of L, and that the absence of such witnesses meant that Z had been placed in the invidious position of being unable to test the written evidence against him.

Under the second ground, Mr Sharp contended that the local authority threshold document said “next to nothing” about the linkage between the findings sought and any significant harm. He submitted that this omission extended to the judgment in which the recorder said little about how any of the matters of fact relied on by the local authority either caused significant harm to L or gave rise to a likelihood of significant harm. In particular, he submitted that, in paragraph [108] of the judgment, the recorder had failed to identify whether he was finding that the threshold criteria had been satisfied on the grounds that L had suffered significant harm, or that there was a likelihood that she would suffer such harm in the future.

Z’s appeal is supported by the mother. On her behalf, Mr Nigel Cholerton also conceded that it had been open to the recorder to extend the scope of the fact-finding hearing beyond the confines of the local authority threshold document. But he submitted that an assessment of whether the process had been fair in this regard turned on two points, which he described as “how you get there” and “the extent of the disparity”.

On the first point, he submitted that the recorder had been wrong to say that the best witnesses were the parents themselves and that it was fair to proceed without the social workers and others being called. The starting-point ought to have been to evaluate the quality of the evidence on which the local authority relied. By effectively ruling that he did not need to hear from those witnesses, he had prevented the mother and Z challenging their evidence. It was submitted that this was tantamount to reversing the burden of proof, as demonstrated by the fact that at points in the judgment the recorder observed that he found the evidence given by the mother and Z “unpersuasive”. On the second point, given the considerable disparity between the local authority schedule and the recorder’s ultimate findings, he submitted that it could not be said that the process was fair.

In opposing the appeal, Ms Gemma Bower for the local authority (who did not appear before the recorder) submitted, relying on A County Council v DP, that it was entirely within the recorder’s discretion to proceed with the fact-finding hearing notwithstanding the fact that at the outset of the hearing no party was seeking any order under s.31. His decision to proceed in the absence of Ms. W or Ms. P on the basis that the direct evidence about the allegations of domestic abuse would be provided by the mother and Z was also within his discretion.

In her skeleton argument, Ms. Bower compared and contrasted the findings made by the recorder against those sought by the local authority. She submitted that, in so far as the findings made were not expressly sought in terms in the local authority schedule, they were fully supported either by the written evidence or the oral evidence given at the hearing. Although she accepted that it would have been preferable if Ms. W had been available, Ms. Bower submitted that her evidence would have been confined to whether the statements she attributed to the mother were accurately recorded in her report. The scope for challenge in cross-examination would therefore have been limited.

For the guardian, Ms. Khan supported the local authority in resisting the appeal. She submitted that the recorder had rightly embarked upon the fact-finding exercise and that it could not be said that his findings were unsupported by the evidence. She also submitted that it was significant that at no stage was any application was made for an adjournment by any of the parties.

A number of reported authorities were cited to us, but the principles are straightforward and uncontroversial.

In Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145, Wall LJ said, in words which have been endorsed in subsequent cases:

In Re A (Applications for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11, [2016] 1 FLR 1, in passages to which the parties alluded before the recorder, Sir James Munby P at [8] - [9] observed that the fact that the burden of proof rested on the local authority carried with it the important practical and procedural consequence,

Before this Court, reference was made to Re W (A Child) [2016] EWCA Civ 1140; [2017] 1 WLR 2415. The judge in that case had conducted a fact-finding hearing over allegations of sexual abuse against a family member, which he found not to have been proved. But in the course of his draft reserved judgment, the judge made findings of serious misconduct against the local authority social worker (SW) and the police officer (PO) involved in the case. They had no advance warning of the judge’s intention to make those findings and appealed, asking that the findings be redacted from the judgment.

At paragraphs [91]-[94] Macfarlane LJ explained the factual background and the reason for allowing the appeal as follows,

In Re W, MacFarlane LJ then went on to make some observations on procedural fairness in the context of Article 8 ECHR. Notwithstanding the very different factual scenarios, it was argued that the approach in the present circumstances should be the same. MacFarlane LJ said:

The passages cited from Re G and B and Re W were recently endorsed by this Court in Re A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947 [2020] 1 FLR 755. They were cited by Peter Jackson LJ in support of his succinct summary of the approach at [96]:

In Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, this Court gave guidance on the proper approach to managing cases involving allegations of coercive control. At [41] the Court observed:

In assessing whether the process by which the findings were made was fair, we start by considering the disparity between the case advanced by the local authority and the recorder’s findings. As Snowden LJ observed in the course of the hearing, the greater the extent of the disparity, the greater the need for procedural safeguards. There is undeniably a disparity between the local authority’s final schedule and the findings ultimately made by the recorder. We are uncertain whether, to adopt Wall LJ’s colourful phrase in Re G and B, the recorder could be described as having gone “off piste”. But for the reasons that follow, we accept Ms Bower’s submission that the recorder’s findings were not, to use McFarlane LJ’s phrase in Re W, outside the “known parameters” of the case.

We were impressed with Ms Bower’s skilful comparison of the final version of the threshold document with the findings made by the recorder (set out respectively at paragraphs 5 and 6 and 51 above). The majority of the findings in paragraph 1 and in particular as detailed in sub-paragraphs (a) – (d) and (f) are either in line with the local authority’s schedule or an expansion of the findings sought. It is almost invariably the case that the evidence will develop and expand during a contested hearing, often in ways which could not be fully predicted at the outset of the hearing, particularly where, as here, there are several parties pursuing his or her own case and seeking to draw out different points from the evidence. There is nothing exceptional in that. Similarly, the significance of a piece of evidence is often obscure at the start of the hearing and only becomes apparent during the oral evidence.

As Ms Bower concedes, one of the specific findings of fact made (the “mirror incident”) in sub-paragraph (e) was not mentioned at all in the local authority schedule. It was, however, alluded to in the written evidence and was the subject of questions put to the mother and Z in oral evidence. It is notable that the recorder was careful to confine his findings to Z’s aggression and did not make findings on aspects (as to the breaking of the mirror and the allegation that Z punched the visitor) on which there was a conflict of evidence.

It is also true that the recorder also made an important finding relating to coercion and control of the mother by Z which was an allegation that had not been included to in the final version of the “Schedule of facts the local authority allege in relation to threshold”.

But, applying the approach set out in the authorities above, we consider that the recorder had good reason to depart from the local authority threshold document, his finding was securely founded in the evidence, and it was made in a way that did not compromise the fairness of the process.

Although coercive control was not expressly pleaded in the final version of the local authority’s threshold document, it was a concept that had featured prominently in the proceedings from the outset and had been addressed in the written evidence.

The preliminary statement from the social worker at the outset of the care proceedings dated 9 December 2020 put Z’s behaviour towards the mother at the forefront of the issues:

In its initial “interim schedule of facts” filed at the outset of proceedings on 4 January 2021, the first allegation by local authority in support of its submission that the threshold criteria were met also included an allegation of abusive and controlling behaviour,

In her response, the mother had asserted, inter alia, that she and Z occasionally argued and had disagreements, but not more than any other normal couple, and that she had never felt scared of Z and had never felt powerless in the relationship. In his response, Z also accepted that there had been some verbal arguments in the presence of L. He did not directly address the allegation of controlling behaviour, simply stating that the allegation was “not accepted as drafted”.

As indicated above, the local authority deleted the express allegation of controlling behaviour in the revised draft of its threshold document served on 16 June 2021. Nonetheless, the fact that the local authority had been concerned that Z’s behaviour towards the mother had been controlling and abusive was acknowledged and addressed by Z in his subsequent witness statement in the proceedings dated 13 September 2021 in which he said:

It is also significant that, whilst the parenting assessment of the mother and Z filed in the course of the proceedings in June 2021 was broadly positive, the assessor expressed concern about the mother’s low self-esteem in her relationship with Z and whether, without further work, this might result in further allegations of domestic abuse.

As we have indicated above, it is also apparent that the issue of coercive control was raised squarely by X in his position statement served shortly before the start of the hearing (see paragraph 13 above) and was addressed by his counsel in argument on the first day when he indicated (apparently without opposition) that he would wish to cross-examine on those matters to establish that it would not be in the interests of his son to return to live with the mother.

The issue of coercive control was also raised during the oral evidence. The allegation concerning the mother’s request to transfer funds to X to prevent Z spending them was also confirmed by X in his oral evidence and was put to the mother during her evidence so that she had the opportunity to deal with it.

The allegation of coercive control also featured prominently in the written closing submissions on behalf of X and the guardian, and it clear from the agreed note of oral closing submissions that counsel for the mother and for Z expressly addressed the issue of coercive control on the merits. Beyond their earlier objections to the general inadequacies of the threshold document and the reliance on hearsay evidence, counsel for the mother and Z did not suggest that the either party had been taken by surprise by the allegation or that it was wrong in principle for the recorder to consider it. Nor did they suggest that they might wish to have an adjournment to adduce any specific documentary evidence by way of bank account statements or the like to deal with the allegations concerning access to the mother’s bank account or Z’s spending.

In those circumstances, it is in our view unsurprising that the recorder considered it appropriate to expand both his investigation of the issue of abuse to include consideration of the question of coercive control, and to make findings in relation to it.

This case is a long way removed from the extreme facts of Re W in which the allegations were not even canvassed at the hearing or put to the relevant witnesses and only appeared in the draft judgment for the first time. The allegation of controlling behaviour had been part of the instant case from the outset, and although the local authority had decided not to proceed with it at the start of the final hearing, X undoubtedly had made it an important part of his case. As X had pursued his case on coercion and control, the recorder was obliged to address the issue in his judgment.

In our view, it was open to the recorder to find that the totality of the evidence put before him, including the oral evidence given by the mother and Z, was sufficient to establish that Z had exerted coercive control over the mother and he was entitled to rely on that finding when considering whether the s.31 threshold was crossed.

Indeed, if the recorder interpreted the evidence in that way, it was his duty to say so. As this Court observed in Re H-N and others, supra at [51]:

We have also carefully considered the complaint that a number of witnesses were not available for cross-examination. The mother and Z knew that the local authority were seeking a finding that the threshold had been crossed on the basis of findings that were in dispute. Although the parties were agreed that there was no need for a s.31 order, all of the legal representatives recognised that it was for the court to determine what order should be made if the s.31 threshold was crossed. For those reasons, they ought to have identified at the earlier case management conference in July 2021 all relevant witnesses who they might wish to cross-examine, such as, for example, the housing officer to whom Z was allegedly aggressive in May 2020 (sub-paragraph (c) of the threshold document) and Ms. W (whose evidence was relevant to sub-paragraphs (e) and (f). They did not do so.

Further, if a relevant witness was not available, it was open to a party to apply to adjourn the final hearing. No such application was made. In oral submissions at the appeal hearing, Mr Sharp said that it had been a difficult decision whether to seek an adjournment of the September hearing because, if successful, it would have inevitably led to a delay in the proceedings concluding. It therefore seems clear that a conscious decision was taken not to seek an adjournment. In those circumstances, it is difficult for the appellant to complain that the recorder went ahead and reached a decision on the evidence put before him.

The recorder was, moreover, careful to take into account the fact that certain witnesses had not given evidence. He concluded that the scope of any cross-examination of those witnesses would be restricted to the issue of whether their records of the mother’s statements were accurate. In that regard he pointed out that the mother and Z accepted the accuracy of much of the hearsay evidence save for points which were damaging to their case. He also noted the consistencies between hearsay evidence of two accounts given by the mother to professionals, and that the mother accepted that she had contacted X in the middle of the night. He found the oral evidence given by the mother and Z to be implausible in a number of respects, for reasons that are entirely understandable. We find his treatment of the hearsay evidence to be balanced and proportionate. Furthermore, we do not interpret the recorder’s use of the phrase “I am unpersuaded” or his reference to finding the mother’s evidence “unpersuasive” as indicating a shift in the burden of proof.

In conclusion, we consider that the totality of the evidence before the recorder was plainly sufficient to support the recorder’s findings and that no party was unfairly disadvantaged by the process by which the findings were made. It would have been better for the parties to have identified the discrepancy between the local authority’s threshold document and the case which X intended to advance, and to have clarified expressly at the outset when the decision was taken to proceed with the fact-finding, that coercive control was potentially to be part of the argument on threshold. But counsel for the mother and Z plainly knew that the point was live and had the opportunity to address it whilst the evidence was being taken and in argument. In those circumstances we see no basis upon which this court could properly set aside the findings.

Given our conclusion about the first ground of appeal, there is plainly no merit in the second ground. If, as we have found, the recorder was entitled to conclude that Z’s conduct towards the mother amounted to coercion and control, he was manifestly entitled to conclude that L was likely to suffer significant harm as a result of their care. This is a good example of a case where it might be open to argument that there was no basis for saying that the child suffered or was likely to suffer significant harm as a result of one or all of the individual incidents taken individually, but there was plainly a likelihood of harm resulting from the pattern of coercive control. It illustrates the crucial importance of a judge looking carefully at allegations to see if such a pattern can be discerned, as the recorder rightly did in this case.

There is no merit in the appellant’s criticism that the judge failed to specify how the threshold criteria were crossed. The omission of such a statement from paragraph [108] of the judgment cited by Mr Sharp is rectified elsewhere in the judgment – in particular in the summary of the recorder’s findings in paragraph [114] when considering the welfare checklist - and in the schedule of findings approved by the recorder.

There is a disparity between what is said in the schedule of findings, in which the recorder states that on the basis of those findings he concluded that the children were likely to suffer significant harm at the material time, and the judgment at [114] in which he stated that L had suffered significant harm by being exposed to Z’s aggressive behaviour. But this anomaly does not give rise to a ground of appeal. On any view, the threshold was crossed. It seems clear to us that the recorder decided that both limbs of s.31(2) were satisfied. It may be that the recorder will on reflection decide to amend the schedule of findings, but that is a matter for him.

For these reasons, the appeal is dismissed.