X (DOB 2017) & Anor (Children), Re

This case relates to two children [who I will refer to collectively as “Cs” within this judgment, for short, and ease of anonymisation if required later]:

The Cs’ mother[who I will refer to as “M”], is the respondent to the main proceedings but the appellant in this appeal. She was represented by Ms Miller of counsel at this hearing, who did not represent her at any of the previous hearings including the one which is being appealed.

Their father [who I will refer to as “F”]. He holds parental responsibility (“PR”) for both Cs as he is named on their birth certificates and was married to M at the relevant times. He is the applicant within the main proceedings but respondent to this appeal. He represented himself at this hearing but was represented by counsel at the previous hearings including the one being appealed. He opposes the appeal.

I will refer to both parents collectively as “the Ps” – short for parents.

M appeals DJ Mian’s case management decision on 12^th June 2025 that a Fact-Finding Hearing was unnecessary, and the consequent decision to direct a section 7 report. She requires permission to appeal a decision of a District Judge, but to avoid further delay, I listed the matter for a rolled-up hearing to deal with both permission to appeal, and the subsequent appeal itself (if permission were granted), as the same arguments applied to both issues.

The parties had an 11-year relationship, starting in 2013, marrying in 2017, and separating in February 2024, with F moving out of the family home in April 2024. They have been embroiled in an acrimonious separation due to M’s relationship with F’s sister’s ex-boyfriend, (who I will refer to as “B”). Since separation, the Cs have lived with M. There was an increase in acrimony in respect of B spending time in the family home with M and the Cs, as F regarded it as unfair that B had unfettered time with his Cs when he did not. Initially the Cs had contact with F, albeit not overnight. F sought to regularise the arrangement to alternate full weekends. When this was not agreed, he made an application for a Child Arrangements Order (“CAO”) on 27/1/2025 which commenced these proceedings.

There was an incident on 29/3/2025 where M alleges that F assaulted X during his contact (M was not present, but she asserts that X told her about it afterwards). M called the police. The police arrested F at work and interviewed him and searched his mobile telephone for evidence of harassment of M. F was under police bail conditions during the investigation period which included that he was not to have any contact with the Cs, so contact was suspended. The police concluded the investigation by taking no further action, at which point the bail conditions were terminated. However, since the incident on 29/3/2025 F has had no direct contact with the Cs as M has opposed any contact other than indirect via cards and presents (and pre-recorded video messages which were agreed at the conclusion of this appeal hearing).

At the first hearing on 16/4/2025, the Magistrates considered whether a fact-finding hearing was necessary (M arguing it was, and F arguing that it was not). There was some dispute at today’s hearing as to their conclusion. F said it was not determined. M’s counsel asserted that the Magistrates determined that a fact-finding hearing was necessary, and directed the Ps to file statements, but did not list the fact finding hearing because the time estimate could not be determined until the evidence had been filed. She pointed to the order making reference to: “The Court will hold a separate fact finding hearing…” however I noted that there was also a preamble to that same order that said: “The Court may hold a separate fact finding hearing…” [my underlining added]. The same order also set out that at the next hearing the Court would consider: “Case management directions in respect of a finding of fact hearing; Which allegations shall proceed to trial; Time estimate for any finding of fact hearing…” and the following order from the hearing of 20/5/2025 also set out that at the following hearing the Court would consider: “The father's application to re-visit the necessity of a finding of fact hearing” [my underlining added] – because the Court could not revisit a decision unless it had made it previously.

At the second hearing on 20/5/2025, the Magistrates reallocated the case to District Judge level and listed the case before DJ Mian on 21/6/2025. At that hearing she determined that a fact finding hearing was not necessary, and directed Cafcass to write a section 7 report – the case management decision which is the subject of this appeal. In the meantime the s. 7 report continued, as if the appeal were unsuccessful it would be unfortunate for there to have been further delay in the proceedings. There was some delay in the matter being listed for the appeal hearing, partly due to delays in obtaining transcripts of DJ Mian’s hearing and judgment, and partly due to my own error, other work commitments and annual leave. This meant that the s. 7 report was actually completed in the interim, and the matter returned before DJ Mian for a further hearing on 9/9/2025. She recused herself on the basis that irrespective of the outcome of the appeal, justice would not be seen to be done if she remained the judge.

As is usual for an appeal, I have not heard oral evidence from each parent, just submissions from each party, with made reference to the 500 pages of written evidence in the bundle. This included: applications, orders, statements from each party and witnesses on their behalf, the Cafcass safeguarding letter and s. 7 report, police disclosure, the appeal application/grounds and skeleton argument, and transcripts of the appealed hearing. There was some dispute as to whether M’s statement dated 5/6/2025 should be included in the bundle, as it was filed late, but there was reference in the transcript of the hearing on 12/6/2025 to DJ Mian giving her permission to file it out of time. DJ Mian specifically refused to give M permission to file a statement from her partner B, as this had never been directed. DJ Mian did not specifically address whether M could rely on the statement from her sister which was also filed late, but I dealt with that at today’s hearing, and as there was no objection to it being included in the bundle it is properly included. I also checked with parties whether there was any objection to me reading the s. 7 report and Ps’ statements in response – both Ps agreed that I should do so, and also consider the clarificatory questions which the Ps had agreed to send to Cafcass at the second hearing before DJ Mian on 9/9/2025.

Today’s submissions were interactive, with the Court asking questions to clarify points, and allowing each side the right to reply to the other party’s submissions to ensure everyone said everything they wanted to before the Court deliberated. Due to the length and nature of submissions, there was insufficient time to deliver an oral judgment during the hearing, so I have provided this written judgment as soon as possible following the hearing, circulated in draft via email on 13^th October 2025, with a formal handing down hearing listed remotely on 20^th October 2025. This judgment is necessarily written in a linear format, but sets out the reasons for my decision which was made after considering all the evidence and submissions holistically. Although I cannot refer to every single piece of written evidence and oral submission in this judgment, I have considered everything I deem relevant. I will deal with the specific content of the evidence where relevant to my analysis below. I have determined only those matters which I consider necessary to my decisions about the Cs’ future.

Permission is required for this application. To obtain permission to appeal, the appellant must persuade the Court that there is a real prospect of success in her appeal (with reference to the appeal test set out below) or some other compelling reason to hear the appeal.

If permission is granted, pursuant to FPR 2010, 30.12 (3) the appeal court will allow an appeal where the decision of the lower court was –

The court may conclude a decision is wrong or procedurally unjust where:

I note that the wide ambit of discretion for the first instance judge means that appeals against case management decisions are particularly unlikely to succeed. In Re H-W (Care Proceedings: Further Fact-finding Hearing) [2023] EWCA Civ 149, Baker LJ helpfully extracted the relevant citations from the applicable authorities. At paragraph 34 he observed: “This is an appeal against a case management decision. Judges in family cases are strongly encouraged to make robust case management decisions that ensure that the proceedings are conducted with a focus on the overriding objective. This Court will emphatically uphold case management decisions save in clearly defined and narrow circumstances. As Sir James Munby P observed in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250 (at para [35]): ‘… it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

The hearing before me has been a review hearing. There are no circumstances in this case in which it would be in the interests of justice for me to hold a re-hearing - FPR 2010, rule 30.12(1). Accordingly, I have not heard any oral evidence, nor have I taken into account any evidence which was not before the lower court - FPR 30.12(2). However, I have reminded myself that an appeal court may draw an inference of fact which it considers is justified on the evidence before it - FPR 30.12(4)

At the hearing of an appeal a party may not rely on a matter not contained in that party's appeal notice unless the appeal court gives permission - FPR 2010, rule 30(5).

It is a fundamental principle, rooted in the common law concept of natural justice and reflected in the ECHR, that a legally valid decision can only spring from a fair hearing. If a hearing is unfair, a judgment cannot stand: Serafin v Malkiewicz [2020] UKSC 23 at paragraph 49.

The function of the appellate court is to determine whether the judgment below is sustainable. In Re F (Children) [2016] EWCA Civ 546, Munby P summarised the approach as follows: "Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."

The task of this appellate Court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at page 1372) which concerns ex tempore judgments. It gives a flavour of the expectations held by the appellate Court in relation to judgments given in the Court below: “These reasons should be read on the assumption that, unless he has demonstrated the contrary, the Judge knew how he should perform his functions and which matters he should take into account... An appellate Court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the Judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

The appeal court has power under FPR 2010 rule 30.11(2) to –

As M’s appeal relates to DJ Mian’s refusal to hold a fact finding hearing, I set out the law in respect of whether to hold a fact finding hearing in private law cases involving allegations of domestic abuse.

PD12J of the Family Procedure Rules 2010 at paragraph 3 defines domestic abuse as including: “…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.”

Under the heading General Principles, at paragraph 4 of PD12J states that: “Domesticabuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both parents.”

By paragraph 5 of PD12J, the court must at all stages of proceedings, consider whether domestic abuse is raised as an issue. If it is then, amongst other matters, the court must:

Paragraph 7 of PD12J states that in proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.

Paragraph 17 of PD12J requires the Court to consider the following when determining whether a fact finding hearing is necessary, and must set out reasons on the face of the order if it determines that a fact finding hearing is not necessary:

Paragraphs 16-20 of PD12J deal with directions for a fact finding. Paragraph 16 states that the court must determine as soon as possible whether it is necessary to conduct a fact finding hearing to provide a factual basis for any welfare report and/or assessment of risk. By reason of paragraph 19 of PD12J where at any hearing an admission of domestic abuse toward another person or the child is made by a party, the admission must be recorded in writing by the judge and set out as a Schedule to the relevant order. The court office must arrange for a copy of any order containing a record of admissions to be made available as soon as possible to any Cafcass officer or officer of CAFCASS Cymru or local authority officer preparing a report under section 7 of the Children Act 1989.

The factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic abuse has occurred are set out in paraphs 35-37 of PD12J. They state that:

Abusive behaviour may be physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, or psychological, emotional or other abuse, and it does not matter whether the behaviour consists of a single incident or a course of conduct [Paragraph 2A of PD 12J, in line with the definition in ss.1 and 2 of the Domestic Abuse Act 2021].

The Court of Appeal in Re H-N [2021] EWCA Civ 448 said that it was key to consider the relationship dynamic as a whole rather than looking at individual ‘incidents’ in isolation. A pattern of coercive and controlling behaviour may involve repeated or continuous, mundane forms of subordination, with relatively few, if any, incidents of physical violence, but may nonetheless be severely destructive of the autonomy and personhood of the party concerned, and indeed may be life-threatening, with consequent impacts on the children. “A pattern of abusive behaviour is as relevant to the child as to the adult victim.” It was stated that the court should be concerned with how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not come within the definition of rape, murder, manslaughter or other serious crimes. Behaviour which falls short of establishing rape, for example, may nevertheless be profoundly abusive and if so, should not be ignored in the family context. The question is: how much and in what ways were the children affected, and what is the risk of future harm?

In F v M [2021] EWFC 4, Hayden J observed that the significance of individual acts may only be understood properly within the context of wider behaviour and an action which on the face of it may appear relatively innocuous can be, in the context of the parties’ relationship, “a brutal act of mental and emotional cruelty”.

In Re Al M [2019] EWHC 3415 (Fam), McFarlane LJ noted that “the purpose of the fact-finding exercise…is to identify such past events as may be relevant to the evaluation of future risk when determining the welfare arrangements for these…children”. The scope of fact-finding must be sufficient to enable the court to make an accurate assessment of future risk, but does not need to make findings on every single allegation where to do so would not be useful to the assessment of future risk. Specific facts and incidents should be selected for trial to the extent that, and only to the extent that, they enable the broader pattern of coercive and controlling behaviour to be established, and “only those allegations which are ‘necessary’ to support the above processes should be listed for determination”.

I have also been taken to Henke J's decision inRe: O (Appeal; Duty to Consider Fact-Find) [2024] EWHC 839 (Fam) in which she said a paragraph 43-5: “[the first instance judge] should have considered the issue of whether to make findings of fact in relation to coercive and controlling behaviours alleged by the Appellant and should not have relied upon any prior determination either in November 2022 or earlier by the Lay Bench. He should have kept the matter under continuous review. The issue of the determination of the allegations was clearly on the facts of this case a matter before him… Nowhere within the judgment did [he] consider the potential nexus between the allegations about behaviour in contact and past alleged behaviours of controlling and coercive behaviour. Nowhere in his judgment did he consider whether determining the allegations of past behaviour was relevant to the establishment of the facts or whether they established a pattern of behaviour relevant to welfare….he failed to consider whether the nature and extent of the allegations, if proved, would be relevant to any issue before the court - PD12J(17)(g) applied. Accordingly, I find that the learned Recorder was wrong not to consider whether or not a fact-find was necessary. However, I do not go so far as to say that he should have decided to have a fact-find.”

PD12J requires that any contact must be safe and beneficial for the child. Complete refusals of direct contact and resultant orders for only very limited indirect contact lie at the very extremities of the court’s powers; there should almost always be some contact between child and parent (Re Q (Implacable Contact Dispute) [2016] 2 FLR 287). It will only be in a rare and exceptional case that the court should agree there should be no contact (Q v Q (Contact: Undertakings) (No 3) [2017] 1 FLR 438, FD and Re G (Children) (Intractable Dispute) [2019] EWCA Civ 548.

The Court must always have in mind the overriding objective, which states that the Court should deal with a case justly, which includes, so far as is practicable:

Given M’s allegations of domestic abuse, she was automatically considered a “vulnerable person” within the definition of Rule 3A and Practice Direction 3AA of the Family Procedure Rules 2010, so I had to consider whether it was appropriate to make any participation directions. I allowed M to sit behind a screen in Court, at her request, and no other participation directions were requested or required.

I have borne in mind all of the aforementioned legal principles in arriving at my decisions in this case.

Turning now to M’s grounds of appeal, numbered according to M’s counsel’s appeal documents, but summarised by myself to try to separate out each strand of the appeal into a separate ground (as some overlapped):

There is some overlap between the respective grounds and I treat them in totality when addressing this appeal. This court will not deal with all aspects of the appeal raised, but focus itself on those matters pertinent to allowing or refusing the appeal. I will not address the grounds in the order in which they are set out in the appeal document, but instead address them in the order I consider more logical

M’s counsel raised 2 further issues at the appeal hearing: DJ Mian had not read M’s statement setting out the alleged abuse, and had addressed the question of the need for a fact finding afresh, not considering it from the point of view that the Magistrates had already said it was necessary, and there had been nothing in the interim to change that position. I permitted M’s counsel to rely on the 2 further issues raised at the appeal hearing not specifically referred to in the grounds of appeal, as they were addressed in the skeleton argument (so nobody was surprised or prejudiced by them being relied upon) and they were subsidiary parts of the listed grounds of appeal.

Regarding the suggestion that the Magistrates had already determined that a fact-finding hearing was necessary, so DJ Mian should not have decided otherwise, without explaining what had changed since their decision:

However, the fact that the judge had not considered all the evidence (in particular M’s statement setting out her allegations) prior to reaching a determination regarding whether or not a fact finding hearing should be listed, is a fundamental flaw. The reason that a Court cannot determine whether a fact finding hearing is necessary until it has all of the relevant evidence is because it needs to consider the factors in paragraph 17 of PD12J, in particular whether there is other evidence or admissions which provides a sufficient factual basis (regarding the Ps’ behaviour and insight, and risk of further abuse) to proceed without a separate fact finding hearing. The reason why she had not read the statement prior to the hearing may have been understandable as it had been filed late, and she had not (at the start of the hearing) given permission for it to be filed out of time. The hearing proceeded on the misunderstanding by M’s counsel that the statement had been read and formed part of DJ Mian’s considerations, because it was in the bundle so he assumed it had been read. He only discovered it was not following DJ Mian’s judgment. At that point, she did give permission for it to be included within the evidence – rightly so as it had been delayed as a result of M’s solicitor being on leave, and no fault of M’s so M should not have been prejudiced by the error. As part of her ongoing duty to keep the need for a fact finding hearing under review, that statement should then have formed part of DJ Mian’s deliberations, and she should have reviewed her decision in light of reading M’s statement. She could not have done so as she had not read it (as she said, set out in the transcript of the hearing: “To expect anybody to read that [54 page statement], let alone me, is quite frankly extraordinary.”).

The failure to consider the relevant evidence before determining the issue of whether a fact finding hearing was necessary is a sufficient basis for the appeal to succeed, without considering the other grounds. However, I will say that ground (1) covers two separate issues: the relevance of the findings to the Court’s welfare decisions, and the type of evidence available to prove the allegations. This ground is largely based on the transcript of the hearing rather than the judgment, where DJ Mian correctly summarised the legal test she was to apply: “I have to look to see whether a finding of fact is necessary and whether it is proportionate and I have to look to see whether the findings are relevant and likely to impact the welfare of the children to the point that we should not take a further step unless those findings are made to allow assessment of risk and impact on the child.” However, there were a number of comments within the hearing as a whole which suggested that DJ Mian placed undue weight on the need for direct harm to the children and/or there to be evidence from independent and/or professional third parties.

For the avoidance of doubt, there is no requirement that the Cs have themselves suffered direct harm as a result of the domestic abuse. The definition of harm in paragraph 3 of PD12J specifically refers to: “suffering harm as a result of seeing or hearing the ill-treatment of another.” In any event, the relevance of any findings is whether there is a risk to the Cs in future, rather than what they may or may not have seen and heard in the past. This can include transferrable risk (e.g. if, as M alleges, F struggles to manage his anger, which has in the past manifested itself by aggression against M, there is a risk that he may express aggression towards the Cs in future if M is not present). Alleged harm to another person (such as the other parent) may be entirely sufficient to justify the need for a fact finding hearing where it is so serious that it may suggest a transferrable risk, or impact on the complainant’s ability to manage handover arrangements or care for the Cs. In any event, there were allegations of direct harm to Cs, namely the 2 alleged assaults on S in September 2024 and March 2025.

There is also no requirement that any evidence is from third parties or professionals in order for it to be reliable. Of course, the evidence of the Ps embroiled in the dispute may be biased, so may not be as accurate as an independent professional, but it is still evidence that should be taken into account. It is a question of what weight it should be given, which may only be possible to ascertain once all of the evidence has been considered and tested through cross-examination at a fact finding hearing. It is also not necessary for the Court to have a professional recommendation that a fact finding hearing is necessary, as the professional opinion is just guidance. It is of note that the telephone interviews for the Cafcass safeguarding report, on which DJ Mian relied for not recommending a fact finding hearing, pre-dated the final allegation of assault on S which led to contact stopping.

Therefore I accept the concerns raised regarding the comments of DJ Mian such as:

However, these comments do not meet the level of appeal as DJ Mian correctly identified and applied the legal test in her judgment, and did not refer to these matters as affecting her decision. So ground (1) is not made out. I do not accept the concerns raised regarding DJ Mian’s comment about X’s autism either (“Oh I know he is autistic and all the rest of it”). Although the comment may have appeared flippant or insufficiently respectful regarding the condition, my reading of it is that she was expressing her frustration at any suggestion that she had not taken into account his condition when she was well aware of it and had done so. It is unreasonable to expect perfect phraseology whilst dealing with a busy Court list.

Regarding appeal ground (2): From the transcript of the hearing, it appears that DJ Mian placed limited weight on the significance of potentially coercive and controlling behaviour which is not in line with the case-law recognising the importance of this form of abuse. DJ Mian made no mention in her judgment of F’s abusive text messages and whether these may or may not support the allegations of coercive and controlling behaviour. There was also no analysis of how the impact on M (of any domestic abuse, and of then having to facilitate contact) may have a knock-on impact on the Cs in her primary care. This ground also overlaps with ground (1) in that covers the concept of transferable risk (will F display controlling behaviour to the Cs during contact instead of M?) and also whether there is a risk to M from contact arrangements (will F attempt to control M through the contact arrangements?). Ground (2) is therefore made out.

Regarding ground (3): the court can take into account whether there was contact following the alleged abuse, and whether professional support was sought and if so what the opinion of those professionals was regarding the seriousness of any risk. None of these matters is determinative on the outcome of the decision as to whether a fact finding hearing is required. There may be a need for a fact finding hearing even where contact has taken place following the alleged incidents because sometimes the disputed behaviour is cumulative over a long time, and sometimes it takes time for a victim of domestic abuse to realise the true nature of the behaviour. Many victims of domestic abuse are not aware of it being abusive until after they have extricated themselves from the relationship, so are not necessarily the best judges of whether contact should continue. So just because there is contact after alleged abuse, does not mean there should have been.

Therefore, DJ Mian’s comments in her judgment are inaccurate that: “The principle of contact is not opposed, it clearly is not opposed and I do not accept that is because of coercive control as it has not been so opposed for some time. The principleof contact has not been opposed, contact is likely to take place even if, the assertions andallegations made by the mother were proven, they do not go to welfare because of the reasonsI have already given and there is absolutely no need for a finding of fact hearing to be held.” This suggests that she considered there was no need for a fact finding hearing where there had been ongoing contact following the allegations, which is not automatic.

Similarly, she placed undue weight on the professionals’ views regarding the appropriateness of ongoing contact. Victims of abuse do not always seek professional support appropriately. When they do, they may not provide professionals with full information. Professional assessment is only as good as the completeness of the information on which it is based. So just because a professional has said there is no issue with contact continuing after alleged abuse, does not mean that it should have continued, if the professional did not have full information regarding the alleged abuse. As noted above, the Cafcass Officer who filed the safeguarding report was not aware (when she did not recommend a fact finding hearing) of the final allegation of assault on X which led to contact stopping, and which was the primary example of an allegation of direct harm to (one of) the Cs – a factor which DJ Mian appeared to consider particularly important.

DJ Mian made no mention of F’s admissions regarding physical chastisement (e.g. to cafcass in his safeguarding interview: “If X is out of line, he gets a clip to the head, on the bum or to his legs.” – which F confirmed during his police interview and during this appeal hearing), neither as a factor leading to the need for a fact finding as it was evidence that M’s account of F assaulting X was more likely to be true, nor as a factor leading to there being no need for a fact finding as there was an admission of physical chastisement which was sufficient factual basis to proceed.

I therefore allow the appeal on grounds 2 and 3 plus not having read M’s statement. There is no need to consider ground (4) separately as it is a catch-all. I set aside the decision that a fact finding hearing is not necessary in this case. That does not mean that a fact finding hearing is necessary in this case. It means that that decision must now be considered afresh, on the basis of all of the information available to the Court. I could remit that issue back down to another District Judge for determination. However, as I had all of the relevant information and submissions before me during the appeal hearing, and all parties agreed that it would be more sensible for this Court to retain case management, I will proceed to determine that issue now.

In order to determine whether a fact finding hearing is necessary, the Court must first identify the factual and welfare issues involved, considering the nature of any allegation, admission or evidence of domestic abuse and the extent to which it would be likely to be relevant in deciding whether to make a child arrangement order and if so in what terms. There is no formal schedule of the allegations which M seeks to prove, nor a response as to what F admits or disputes. However, from the papers, the primary allegations appear to be as follows:

Of those allegations, some are partially admitted by F:

Considering all the other factors in PD12J:

In addition to the factors specifically set out in PD12J, I also consider the overriding objective’s demand that a proportionate approach is taken to all cases, and the delay principle that delay is usually against the welfare interests of the children, both of which argue against reverting to a separate fact finding hearing at this stage.

M is therefore successful in her appeal on the basis of grounds 2 and 3, and DJ Mian’s decision not to hold a fact finding is set aside. However, I have reinstated the decision that a separate fact finding hearing is unnecessary on the basis of all the information available to the Court at this time. I will therefore list the matter for a 2 day final hearing which will allow time for the Ps’ to test the Cafcass Officer’s professional opinion through cross-examination, and for the Ps to give brief evidence if required to address any specific factual issue which the Cafcass Officer and/or the Court considers would make a material difference to the outcome of the case namely the contact arrangements.

This draft judgment will be circulated via email to M’s legal representatives, who must share it with their client and F (as he is unrepresented so I cannot email him directly) for the purposes of them reading it and requesting any amendments. A formal handing down hearing is listed remotely at 3.30pm on 20^th October 2025. Any corrections, amendments or clarifications must be sought by no later than 4pm on the day before that formal handing down hearing (via email through M’s legal representatives, who will pass the requests on to me). The Appellant’s counsel must also submit via email a draft agreed order by no later than 4pm on the day before that formal handing down hearing so that it can be amended and approved at the formal handing down hearing. Time for any appeal will run from the formal handing down hearing.