Q v Y (Fact Finding Hearing)

This judgment arises from a hearing in Children Act 1989 proceedings. The proceedings concern a young girl, P, who was born in Spring 2023, and is, therefore, two years’ old.

P’s parents are Q (“the father”) and Y (“the mother”). The parents have never been married but the father is named on P’s birth certificate and, therefore, both parents hold parental responsibility for her. The parents have separated, and P lives with her mother in the North East of England. The father lives in Hampshire and currently spends two hours per week with P in a contact centre.

On 30 April 2024, the father commenced Children Act 1989 proceedings. Insofar as the procedural history to the case is relevant to the judgment, it is as follows. On 14 June 2024 the case came before DDJ Hearne. The parties gave cross undertakings not to use violence or harass each other for one year, the mother was permitted to take P on holiday to Spain, a prohibited steps order was made against the mother preventing the permanent removal of P from the jurisdiction and restricting the mother’s ability to move location without the consent of the father or further order. Police and other disclosure was also ordered.

On 26 July 2024 the matter came before DJ Lynds for a FHDRA. Directions were made to enable the court to decide if a fact finding hearing was required as the mother had made allegations of domestically abusive behaviour against the father which were disputed. The matter came back before DJ Lynds on 6 December 2024 where the mother’s schedule of allegations was reviewed, slimmed down and a fact finding hearing directed on 2 allegations. The case was also transferred to the Family Court at Durham as the mother and P had relocated to the North East where the mother was studying. Contact at a contact centre was ordered. On 22 May 2025 there was an ineffective hearing before DDJ Mead as the court had not received any bundle for the case. On 29 May 2025 the mother issued an application seeking permission to P to enrol in a nursery local to a school at which the mother intended to take up employment. She sought to withhold the details from the father. The matter came before DDJ Robson on 17 July 2025 for a pre-trial review. At that stage the mother was represented by counsel and the father was a litigant in person so DDJ Robson directed the appointment of a Qualified Legal Representative (“QLR”) to cross examine the mother and made other directions to enable an effective fact find to take place. She also directed that the fact finding hearing would deal with the mother’s application to relocate given the need for that to be determined in advance of the new school year commencing in September.

The matter then came before me on 18 and 19 August 2025 for the fact find and for determination of the application by mother to relocate and enrol P in the nursery. There was also a dispute about the child’s name which required determination.

Both parties were litigants in person supported by McKenzie friends. The father had a professional McKenzie friend and the mother had assistance from her father. All parties attended in person.

A bundle was prepared for the hearing. The material before me included the application and orders made in the case; the Scott Schedule prepared by the mother together with the father’s response; witness statements from the mother and the father, video clips, police disclosure material and a number of miscellaneous papers.

The bundle was pre-read prior to the commencement of the hearing. Some documents were added to the bundle during the hearing and all the material was considered when coming to this judgment including the initial Cafcass safeguarding letter. This judgment cannot refer to each piece of evidence and refers to the most important evidence in relation to each allegation.

The father emailed some further material to the court this morning. I make clear that I have not considered that material in coming to my judgment.

The law applicable to fact-finding hearings has been authoritatively stated by Cobb J (as he then was) in the case of BY v BX [2022] EWHC 108 (Fam) at [24] to [28]:

“General principles of law

24.

I have considered the allegations of ‘domestic abuse’ in this case by reference to the definition contained in §3 of PD12J FPR 2010, namely:

‘domestic abuse’ includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse, and transnational marriage abandonment;

‘coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

‘controlling behaviour’ means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

25.

While not concerned with the criminal implications of either parties’ conduct here I observe that controlling and coercive behaviour has been a criminal offence since 2015 (section 76 of the Serious Crime Act 2015) and I have reminded myself that the ingredients of the offence were recently discussed in the judgments following the appeal in the case of R v Chilvers [2001] EWCA Crim 1311.

26.

I distil the principles below on which I determine the issues in the case as follows:

i)

The burden of proof lies, throughout, with the person making the allegation. In this case, both the mother and the father make allegations (in some respects overlapping) against each other on which they seek adjudications;

ii)

In private law cases, the court needs to be vigilant to the possibility that one or other parent may be seeking to gain an advantage in the battle against the other. This does not mean that allegations are false, but it does increase the risk of misinterpretation, exaggeration, or fabrication;

iii)

It is not for either parent to prove a negative; there is no ‘pseudo-burden’ on either to establish the probability of explanations for matters which raise suspicion;

iv)

The standard of proof is the civil standard – the balance of probabilities. The law operates a binary system, so if a fact is shown to be more likely than not to have happened, then it happened, and if it is shown not to cross that threshold, then it is treated as not having happened; this principle must be applied, it is reasonably said, with ‘common sense’;

v)

Sometimes the burden of proof will come to the judge’s rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But, generally speaking, a judge ought to be able to make up his/her mind where the truth lies without needing to rely upon the burden of proof;

vi)

The court can have regard to the inherent probabilities of events or occurrences; the more serious or improbable the allegation the greater the need for evidential ‘cogency’;

vii)

Findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation; it is for the party seeking to prove the allegation to “adduce proper evidence of what it seeks to prove”;

viii)

The court must consider and take into account all the evidence available. My role here is to survey the evidence on a wide canvas, considering each piece of evidence in the context of all the other evidence. I must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the person making the allegation has been made out to the appropriate standard of proof;

ix)

The evidence of the parties themselves is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability;

x)

It is, of course, not uncommon for witnesses to tell lies in the course of a fact-finding investigation and a court hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. I am conscious that the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720); I have borne firmly in mind what Lord Lane CJ said in Lucas, namely that:

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”

xi)

That my function in resolving disputes of fact in the family court is fundamentally different from the role of the judge and jury in the Crown Court. As the Court of Appeal made clear in Re R [2018] EWCA Civ 198:

“The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established” ([62] Re R).

A point which I myself considered in F v M [2019] EWHC 3177in a judgment which was referenced with approval in Re H-N (see §69/70).

xii)

At all times, I must follow the principles and guidance at PD 12J of the Family Procedure Rules 2010.

27.

Counsel rightly pointed me to the relevant sections of the Court of Appeal’s decision in Re H-N, in particular that:

“… there are many cases in which the allegations are not of violence, but of a pattern of behaviour which it is now understood is abusive. This has led to an increasing recognition of the need in many cases for the court to focus on a pattern of behaviour and this is reflected by (PD12J)” (§25).

They further referred me to the decision of Poole J in Re JK (A child) [2021] EWHC 1367 (Fam), and the decision of Hayden J in F v M [2021] EWFC 4. While those judgments are of real interest, I see no benefit to the parties here in reproducing large sections of those judgments herein.

28.

I was further reminded of Peter Jackson LJ’s comments in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121(§61), cited with approval in Re H-N at §32 to the general effect that:

“… not all directive, assertive, stubborn, or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour.”

I agree with and adopt Cobb J’s statement of the law and would add only one point. I must bear in mind the observations of Macur LJ in the case of Re M (Children) [2013] EWCA Civ 1147, where she said:

“12.

... It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

I make clear that my assessment of the parents has not been based solely upon their performance in the witness box, nor their behaviour within the courtroom.

In so far as there is law which relates to these aspect of the case, it is set out in section 1 of the Children Act 1989. P’s welfare is my paramount consideration - subsection (1). I am guided in making my decision by the factors set out in the welfare checklist at subsection (3).

The law in relation to QLRs was set out by Sir Andrew McFarlane, President of the Family Division, in Re Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22.

In that case the President gave guidance on how a court should proceed where the court had been unable to appoint a QLR. In that case the President expressed hope that the problems that existed in late 2023 in securing QLRs would be eased by changes to the funding arrangements for QLRs. That hope has not been fulfilled: there are a handful of advocates who undertake work as QLRs in this part of the country and the court being able to secure a QLR is the exception not the norm.

As is common practice, DDJ Robson directed the father to file in advance of the hearing a list of questions which he would wish to the court to put to the mother in the event that no QLR could be appointed. The father complied with that direction. Helpfully the mother had also prepared a list of questions that she wished to have put to the father despite not having been directed to do so and handed those to me at the start of the hearing.

There was no ground rules hearing in this case. Such a hearing was regarded by the President as necessary in Re Z (Prohibition on Cross-examination: No QLR) (supra). The reality, at least in the Newcastle area, is that such hearings are rarely ordered. When it is almost inevitable that there will be no QLR they serve little purpose and take up valuable court time that is needed for other cases. It was therefore not surprising that in this case DDJ Robson did not order a discrete ground rules hearing in advance of the fact finding hearing.

I carefully reviewed the questions supplied by the parties. Many of the questions were irrelevant, some of them required reframing and many were related to welfare aspects of the case rather than the fact finding exercise that I had to undertake.

I have to record that I found the task of asking questions of the mother and father both onerous, unnatural and difficult. Trying to draw the line between putting a party’s case fairly and straying into what might be regarded as inappropriate cross-examination by the judge is difficult. Given that fact-finds are inquisitorial in nature makes the job harder. On a practical level it is also extremely difficult to ask questions, take an accurate note of a witness’ evidence and assess the quality of their evidence. Nonetheless the child’s welfare requires us to persevere with this sub-optimal process.

The mother sought to prove 2 allegations which were set out in a schedule. The first allegation related to what she said was coercive and controlling behaviour by the father. The second allegation relates to the father’s behaviour on 13 October 2023 when the mother said the father behaved inappropriately towards her during an argument. Both allegations were denied by the father.

As in many fact-finding cases, much turns on my assessment of the witnesses, in this case the mother and father. As a judge conducting the fact-finding hearing, I have had the advantage of seeing them give their evidence and have had an opportunity to assess their manner and demeanour whilst giving that evidence, and perhaps, as importantly, when hearing the other give evidence. I will repeat, however, that I do bear in mind that a witness’ demeanour may not be an accurate guide as to whether they are telling the truth.

I had the benefit of hearing oral evidence from the mother and the father. Neither was an impressive witness. The mother was not prepared to make any appropriate concessions and the father did so only with the greatest reluctance.

I will deal with the events of 13 October 2023 first. The mother sought to prove:

“The father started an argument with the mother, during contact, while holding the baby. He blamed the mother and squared up to the mother, resulting in the mother feeling afraid and asking him to take a step back. The mother felt threatened and contacted the police on 15 October 2023.”

There is footage of this incident from a Ring camera in the home. The mother supplied 7 video clips, each around 1 to 2 minutes long. She maintains that these demonstrate the behaviour she complains about. I have viewed them on more than one occasion.

The clips do not support the mother’s case. Although both parents do swear at each other on a couple of occasions, using the f word, that is unremarkable. All of the conversations are conducted at a moderate sound level: there is certainly no shouting or raised voices by either party. The father, on one occasion, does approach the mother and they speak to each other at close range for perhaps 5 seconds. The father is not towering over the mother, behaving in an aggressive way or “squaring up” to her. The mother appears entirely unconcerned by this. She does not ask the father to step back. She does not give any indication by word, facial expression or other body language of any concern at his behaviour.

None of the video clips show anything more than 2 people who perhaps do not like each other and who cannot agree on arrangements for their child.

On my review of the footage, I think both parties were very well aware of the camera and were, to an extent, playing up to it. If anything, over the course of the clips the mother was goading the father for a reaction. The root cause of the conversations is clear: it is that the mother has unilaterally enrolled P in a nursery.

Regrettably, I have no option other than to conclude the mother has lied about this incident. My finding in relation to this allegation is not merely that it is not proved. It is a false allegation.

The mother sought to prove that:

“The father subjected the mother to controlling and/or coercive behaviour. He would control, demean, belittle and threaten the mother throughout the relationship and post-separation using threats, intimidation, isolation, withdrawal of affection, attention and support and subject her to the silent treatment and ‘stonewalling’. He would accuse the mother of trying to ‘control him’. The mother is suffering from suspected complex PTSD and cognitive dissonance. The father subjected ex-partners to similar patterns of behaviour.”

The drafting of this allegation leaves much to be desired: it demonstrates a scattergun approach to drafting.

There is no evidence before me that the mother is suffering from suspected complex PTSD and cognitive dissonance. That aspect of the allegation is not proved.

None of the father’s other partners have either attended to allow their evidence to be tested and/or given a witness statement with a statement of truth. In those circumstances I give no weight to their evidence and that aspect of the allegation is not proved.

In relation to the general allegation of controlling or coercive behaviour, there are a number of text messages and emails which clearly demonstrate that the father liked to be in control of his situation. The most striking example is the text the father sent to his therapist (and copied to the mother) on the day the parties separated, 30 July 2023. There are other messages in which the father accepts he has not behaved well during the relationship. Another message, the father accepted, showed him linking financial support for P to the mother’s behaviour in a way which was unacceptable and amounted to financially coercive behaviour. The father also accepted that his communication style could, at times, be direct.

The bundle contains a number of emails and, indeed, a witness statement (dated 8 August 2025), from the father that are written in a very condescending or demeaning manner and are simply wholly inappropriate.

The father’s communication style is direct and I have no doubt that at times he has behaved in a stubborn and selfish way towards the mother. But that behaviour was not, in my judgement, intended to control her. It was poor behaviour but that does not make it necessarily domestically abusive behaviour.

Given that I have found the mother lied about the events of 13 October 2023, I have treated her evidence in relation to this allegation with a great deal of caution. I have given myself a Lucas direction. She does not accept that her account of the events of 13 October 2023 is inaccurate and has offered no explanation for why her account is exaggerated. In those circumstances I am not able to accept her evidence in so far as it is unsupported by other material.

My finding in relation to this allegation is as follows:

“The father has communicated with the mother and other members of the maternal family in a way that is demeaning and disrespectful to them. He has on at least one occasion acted in a way that constitutes financially controlling or coercive behaviour. “

Thankfully this was one aspect of the case on which the parents were able to agree after a little judicial nudging towards the solution. Going forward P will be known as P.

The mother’s evidence in support of her application was poor. She did not exhibit to her witness statement either a copy of the letter offering her a job at a school in the Home Counties, or any information that showed P had a place at a local nursery. She provided no information about her proposed living arrangements.

This information was only provided after I had requested it at the start of the hearing and, in relation to the mother’s proposed living arrangements, in the course of her oral evidence. In those circumstances she can hardly criticise the father for withholding consent. He is entitled to not just know what the arrangements for his daughter are but, at least in relation to the choice of educational establishment, to have an equal say in that. He has parental responsibility for P that is equal to that held by her mother.

The mother has, as with the nursery that P was originally enrolled with, sought to take decisions, which should be joint decisions, unilaterally. That is inappropriate. It is in its own way controlling behaviour. The mother is giving the impression that she would like to take all the decisions for P and limit the father’s involvement in his daughter’s life. That needs to stop.

Having said that, the father accepts that the mother has now qualified as a teacher and been offered a job in the Home Counties. Whilst it would be unfair to suggest he consents to the mother and P moving to that area, and P joining a local nursery, he no longer actively opposes this.

The reality is that the mother is currently P’s primary caregiver and P has to live where the mother lives. The mother’s new job is in the Home Counties and P needs to attend a nursery in that area. As the father lives in Hampshire, P will be much closer geographically to him after the move meaning that contact will be easier. Allowing the mother to relocate to the Home Counties, and P to enrol at a local nursery, meets P’s welfare needs.

I will make an order reflecting that and discharging that part of the prohibited steps that prevents relocation by the mother (paragraph 18 of DDJ Hearne’s order of 14 June 2024).