A v K (Appeal: Fact Finding: PD12J)

By this appeal, the appellant, Ms A (“the mother”), challenges the decision of a Family Court Judge not to hold a fact-finding hearing within private law proceedings under Part II of the Children Act 1989 (‘CA 1989’) where cross-allegations of domestic abuse had been raised.

By his preliminary ruling on the first day of the three-day hearing on 6 September 2023, which was confirmed and more fully explained in a substantive reserved judgment handed down on 18 October 2023, HHJ Talbott sitting at the Central London Family Court (the ‘CFC’) declined to conduct a fact-finding hearing in relation to the alleged domestic abuse, and/or make any adjudication upon a number of allegations, when determining the welfare issues arising within the private law proceedings which had been brought by Mr K, the Respondent to this appeal (“the father”).

The subject of the substantive application, and therefore of this appeal, is a girl who I shall refer to as M; she is 8 years old and the only child born within the relationship of the mother and the father.

For the purposes of the appeal, I have read a number of documents which had been filed in the first-instance proceedings in the CFC; I have read the Judge’s reserved judgment. I have been provided with transcripts of the evidence of the parties and the Family Court Adviser. I have received the able written and oral submissions of counsel instructed by both parties.

At the appeal hearing, the mother sought permission to file a further statement of evidence; I read it on a provisional basis, to assess whether it satisfied the general tests for admissibility of fresh evidence (rule 30.12(2)(b) Family Procedure Rules 2010: ‘FPR 2010’). It did not, and I therefore did not admit it. However, what did become clear at the outset of the appeal hearing is that one of the mother’s complaints about the Judge’s decision, by which he refused to allow a change of school for M, could not be pursued as there was no longer a place in the school which the mother wished M to attend. Ground 5 of the Notice of Appeal, to which this issue referred, was therefore withdrawn.

These parties met in 2013. The father is currently 42 years of age, and the mother is 38 years of age; both are working professionals. They began cohabiting in 2014 and were married in an Islamic ceremony in the same year. They did not participate in any civil ceremony of marriage. M was born in 2016. The parties separated for a period in 2018; they reconciled at the start of 2020 but finally separated in September 2020 following the arrest of the mother on a charge of assault upon the father. M was then 4 years of age.

It appears that the relationship had been conflictual more or less from the start. The parties’ cross-allegations of domestic abuse refer to events which extend throughout the duration of the relationship up to 2021; the allegations were set out in a composite schedule dated 25 November 2021. Neither party sought to update the schedule prior to the hearing before the Judge, suggesting that there had been no more recent incidents of note.

The father’s allegations in summary were:

The mother’s allegations in summary were:

The incidents referenced at §8(v) and at §9(vii) are one and the same. As to this, it is notable that although the mother continues to deny this incident, she was convicted in the magistrates court of the assault as alleged by the father (§8(v)), and her conviction was upheld on appeal at the Crown Court. The mother was also convicted in the magistrates court in relation to the incident at §8(iv) although her conviction in relation to this incident was subsequently overturned on appeal. At the hearing of the appeal in the Crown Court, which took the form of a re-hearing, the Judge found the father to be “plausible … credible and reliable”, in contrast to the findings in relation to the mother. Although the mother had asserted before the Crown Court that she was “terrified” of the father, the Crown Court Judge concluded that her claim “appeared to be inconsistent with what we could see of her behaviour” (which included “provoking” the father) in the video recordings of events which had taken place in the family home.

By the time of the hearing in September 2023 in the CFC, M was living predominately with her mother at the home of the extended maternal family in south London; she was spending four nights per fortnight with her father, also in south London. She attended a school which was closer to the father’s home. The relevant local authority had been involved with the family in 2020, and at that time had undertaken a ‘child in need’ assessment under section 17 CA 1989; the authority did not initiate any child protection procedures, in part it seems because M then moved to another local authority area in which her maternal family lived. There was a further local authority investigation in early 2022.

In December 2020, the father had issued an application for a range of child arrangements orders under Part II of the CA 1989. The specific welfare issues on which the Judge was required to reach a determination at the hearing in September 2023 were:

In its case management phase, the father’s application for orders under the CA 1989 enjoyed neither judicial continuity, nor judicial consistency of approach:

On the afternoon before the hearing, the Judge sent an e-mail to the parties’ legal representatives in these terms:

Pausing here, it may be helpful to point out that in his reserved judgment (at [59]), the Judge reviewed the case management history in this case which I have set out above. He comments as follows:

It was the father’s position at the hearing before the Judge (adopting the language of PD12J paras [5], [14], [16], [17], and [19]) that it was not ‘necessary’ for the court to investigate the allegations of domestic abuse, as they were not ‘relevant’ to the issues before the court; he repeatedly told the court in his oral evidence that “we’ve moved on”. The mother sought to have her allegations against the father investigated, claiming that they were ‘relevant’ and that it was ‘necessary’ to adjudicate upon them.

Having heard argument, the Judge indicated that he did not intend to investigate the allegations of domestic abuse. He returned to this in his detailed reasoned reserved judgment at [27], wherein he said this:

The Judge’s detailed reserved judgment opened with the survey of the procedural history, describing the lack of judicial continuity and consistency to which I have drawn attention above. He referenced the cross-allegations of domestic abuse (including physical and emotional abuse, controlling and coercive behaviour). He alluded to the mother’s conviction for assault against the father. He reproduced the definitions of domestic abuse contained in PD12J and in the Domestic Abuse Act 2021, and cited important paragraphs from the former. He then went on to explain why he had resolved not to conduct a fact-finding hearing, importantly emphasising that “[a]s a starting point, it is necessary to determine what the disputed welfare issues are in this case”. The Judge correctly identified the three welfare issues for his determination as I have outlined them above at §12. He continued:

The Judge recorded ([38]) that in anticipation of the final hearing, and at a time when she was legally represented by counsel and solicitors, the mother had signed and filed a witness statement in which she had confirmed her agreement to a continuation of the arrangements for M to stay overnight with her father on four nights out of fourteen, while opposing any increase in these arrangements; the Judge recorded that the mother had confirmed this position in her oral evidence. He continued ([42]):

The Judge referenced the President’s Guidance “Fact-finding hearing and domestic abuse in Private Law children proceedings” (5th May 2022); he quoted the following extracts in their entirety in his judgment, which, given their relevance to the issues before me, it is appropriate that I too should reproduce:

The Judge alluded to the Court of Appeal’s statement in Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 (‘Re H-N’) concerning the importance of the modern judiciary having a proper understanding of the nature of domestic abuse and in particular of controlling and coercive behaviour and of its impact on both the victims and the children caught up in the atmosphere engendered in such a household ([224] of Re H-N). At [45] of his judgment he continued:

The Judge then addressed the parties’ respective cases:

The Judge turned to the mother’s further allegations including her assertion that the father had denied her a civil marriage in order to control her, and his alleged ‘financial abuse’ of her; he referenced the two specific alleged incidents of physical and verbal domestic abuse which were said to have occurred on 9th January 2018 (alleged verbal abuse and pushing) and 15th September 2020 (father said to have thrown a mug at her).

The Judge then went on to consider the evidence of the Family Court Adviser, and said this:

The Judge commented on the agreement of the mother to M having regular unsupervised staying contact with her father; he appropriately accepted that “victims of domestic abuse sometimes do agree to contact arrangements as a result of the continuing effect of the control and coercion of their abuser on them” ([54]) but added (ibid.) that:

The crux of the decision is at [56]:

The Judge went on to consider the welfare issues. Specifically, in this regard, he commented:

The Judge made assessments of both parties, giving them some backhanded credit for behaving in a more mature manner than in the period under review. He recognised that the mother had given M “excellent care on a consistent basis” but was critical of the mother for making an “unreasonable and unjustifiable mental leap” in suggesting that the father had sexually abused M after two occasions when M had apparently wet the bed when staying at her father’s home; in this regard, her evidence was found to be “inconsistent and implausible”, the Judge finding that she deliberately implied to professionals that there were genuine concerns about sexual abuse so as to influence their recommendations as to contact with the father. Moreover, he found that the mother “misrepresented the truth” by implying to M’s general practitioner that she alone had parental responsibility for M, and that the father did not. The Judge further criticised the mother for telling M that “the father “was not her (i.e., M’s) friend because he sent mummy to jail”. The Judge criticised the father too, finding his “explanation as to some of his past behaviour to be simply implausible”; he referred to the father as occasionally “immature and stubborn” at times of conflict and displaying “un-child-focused behaviour”.

The Judge’s welfare analysis took account of the matters set out in section 1(3) CA 1989. This assessment included:

He concluded:

In relation to the form of order (the ‘joint lives with’ order):

The order made by the Judge contained the following provisions:

The mother launched her assault on the Judge’s approach under five Grounds of Appeal. Henke J refused the mother permission to appeal on Ground 1, which had challenged as a point of ‘procedural unfairness’ the Judge’s decision to reject the need for a fact-finding hearing at the outset of the hearing “despite the hearing having been listed for a ‘rolled up’ final hearing and fact-finding hearing for many months”. Quite apart from the general case management obligations set out in rule 1 of the FPR 2010 (supported in this regard by PD12B para.[20]), para.[5] of PD12J quite emphatically requires a judge at “all stages of the proceedings” to consider whether domestic abuse is raised as an issue, and “consider the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order”. The Judge did precisely that. For these reasons, this ground was destined to fail. Henke J granted permission to the mother to pursue Grounds 2-5, though Ground 5 fell away (see §5 above) given that the mother had no alternative school place for M.

Ground 2: reads as follows: “The judgment omits material and significant aspects of the evidence that would have supported findings of domestic abuse and coercive and controlling behaviour, including, but not limited to:

Ground 3: reads as follows: “It was legal error for the court to determine that M’s case as to domestic abuse, “taken at its highest”, would have no effect on the welfare decision because the father was already having overnight contact”.

Ground 4: reads as follows: “In determining child arrangements, the court did not place enough weight on the child’s sex in light of the father’s comment that it “would depend on the circumstances” if she came to him to say that her future husband would not register her marriage or expected a certain level of cleanliness in the home. The father’s prejudicial views are harmful for the child”.

Ms Traugott focused her appeal on the Judge’s failure to consider the specific factual matters raised in Ground 2 which thus led to an “unsafe contact order”; she described the Judge’s failure to address the issues as a “legal error”, given that they were “significant enough to require that they be taken into consideration”. She argued (reference Ground 3) that the father had been responsible for “some of the most serious coercive and controlling behaviour that can be inflicted”.

It was suggested on behalf of the mother that she was put under pressure to agree the overnight contacts for M with her father even though she was represented by solicitors and counsel at the hearings at which this was agreed. The mother further argued that it was incumbent on the judge when considering M’s welfare to consider her “age, sex, background and any characteristics” which the court considers relevant, adding “[M] is Muslim. Her father, according to his evidence, holds strict views about women in Islamic marriages”. She added:

Ms Traugott drew attention to the fact that the CPS had not yet made any charging decision in relation to the father in respect of her allegations of abuse against him; she argued that a risk assessment for future contact was indicated because of the father’s “misogynistic and controlling views about women, the effect on the mother of having to attempt to co-parent with an abusive ex-partner who has caused her harm, and the father’s lack of insight and empathy”.

In response, Mr Azam, counsel for the father, argued that the Judge had directed himself admirably, clearly, and concisely. He challenged the proposition that the refusal to marry a woman who has been convicted of an assault against him is an example of his controlling and coercive behaviour towards her. He accused the mother of being so selective in her extracts of the evidence on appeal that the all important context is lost; he argued that “[t]he bare assertion, out of all context, of the various alleged admissions (to the extent they can be regarded as admissions at all) do not and cannot amount to evidence of controlling and coercive behaviour”. He drew attention to the adverse findings against the mother in the Crown Court of her lack of credibility, the finding that the mother was deliberately interfering with the father’s relationship with M in relation to his access to her medical records, and the scurrilous and unfounded suggestion of sexual abuse; he relied on K v K [2022] EWCA Civ 468 (‘K v K’) and the fact that the duty is on the court only to determine “those factual matters which are likely to be relevant to deciding whether to make a child arrangements order and, if so, in what terms” ([67]).

The father expressed his surprise that the mother had asserted that she was placed under pressure to agree the unsupervised and overnight contacts, having never advanced a case in writing, or during the course of her oral evidence to that effect. On the contrary, it was observed, the mother specifically sought to increase the number of M's overnight stays with her father when it suited her own arrangements.

The father refuted the assertion that he held strict views about women in Islamic marriages; this was “wholly unsupported by any factual determination”. He had, he pointed out, given oral evidence at the hearing as to the value and prominence of highly educated women in his family, a contention which was supported by his written evidence. He argued:

The law in this area is now well known, and I am satisfied that the Judge traversed it appropriately in the course of his judgment. He cited relevant extracts from PD12J FPR 2010; he referenced appropriately sections 1-4 of the Domestic Abuse Act 2021. While not specifically citing section 76 of the Serious Crime Act 2015 (which makes controlling and coercive behaviour a criminal offence) the Judge did not minimise the impact of this kind of behaviour on a family (see [45], [48], [49]: see §§21-22 above). He drew on the President’s Guidance “Fact-finding hearing and domestic abuse in Private Law children proceedings” (5th May 2022) (see §20 above). He referenced the significant body of caselaw which has now built up around these provisions in recent years including Re H-N, Re B-B [2022] EWHC 108 (Fam) (‘Re B-B’), and K v K. During the hearing, and at my instigation, counsel and I further considered Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam); Re H-D-H [2021] EWCA Civ 1192 (Re H-D-H’); and the recent judgment in AZ v BX [2024] EWHC 1528 (Fam) (‘AZ v BX’).

As I said in Re B-B at [13]:

The Court of Appeal in Re H-N dedicated an important section of its judgment to the question of the necessity of holding fact-finding hearings and their scope (see ‘The Approach of the Court’: Re H-N at [35]-[40]). I am satisfied that the Judge in the instant case faithfully applied its terms (see what I say at §19 above). For convenience I repeat what the Court of Appeal said within this section at [37]:

Those are, in my judgment, the most important passages on this topic in our current caselaw. The seminal procedural rule which underpins those comments is rule 1.2 of the FPR 2010, which requires judges to deal with cases in a way which is “proportionate to the nature, importance and complexity of the issues”. The fundamental decision to hold (or not to hold) a fact-finding hearing is also located (albeit not explicitly) in rule 1.4(2)(c)(i) FPR 2010 which is itself a cornerstone of the FPR 2010, requiring judges to “[decide] promptly which issues need investigation and hearing and which do not”. Thus, in this field as in all others in the Family Court, litigants should expect the issues to be tried to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to those which it is necessary for the court to hear (see again the ‘Road Ahead’: June 2020 quoted in Re H-N (see above) at [43] and see also [44] / [46] / [47]). As the caselaw has made clear:

The judgment in the instant case was in my judgment faithful to these principles.

As to the appeal itself, rule 30.12(3) FPR 2010 provides that an appeal will be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity. The court may conclude a decision is wrong because of an error of law, or in limited circumstances where the Judge has reached a conclusion on the facts which is not sustainable on review: see generally on this second aspect the judgment of Lewison LJ in Fage UK Ltd & Anor v Chobani UK ltd & Anor [2014] EWCA Civ 5 at [114] to [115].

The two essential welfare issues which remain under challenge in this appeal are:

It is convenient to take Grounds 2 and 3 of the Grounds of Appeal together. In combination, the mother seeks to show that the Judge was wrong not to make certain findings of fact about the father’s conduct towards her, and that had he done so, those findings of fact (taken with others) would have impacted materially upon the welfare decision.

In my judgment, the Judge approached the issue of fact-finding in this case both responsibly and carefully; as I have already indicated (see §48 above) he directed himself impeccably in relation to the application of PD12J and to the overriding objective in rule 1.2 of the FPR 2010. He did not allow himself to be distracted by the largely unexplained decisions of some of the case-management judges who had sought to steer the case towards a fact-finding hearing; he rigorously examined whether the allegations raised by either parent would be relevant to the issues which he had to decide, and concluded that they were not. He was rightly focussed on the necessity (or otherwise) of the investigation on the facts of this case, and in my judgment he conscientiously applied the law which he had summarised at [42] of his judgment (see §19 above). He scrupulously considered the “relevance of the potential result of the investigation to the future care plans for the child” (Oxfordshire); as I have indicated at §25 above, he drew on the opinion of the Family Court Adviser which was to the effect that the undetermined allegations of domestic abuse made by both parents was not sufficient to prevent regular periods of significant unsupervised overnight contact. He was not distracted at the hearing by the renewed assertions of allegedly bad behaviour by one parent against the other save and as far as these points were relevant to his assessment of the ‘balance of power’ within the post-separation relationship.

The Judge rightly did not dismiss or diminish the significance of domestic abuse and its effect on its victims, but emphasised that he had to have regard to its relevance and impact on the particular facts of this case. It was the mother who pursued findings; thus he was entitled in this regard to take into account in his decision that:

In relation to the decision to extend the number of overnight stays for M with her father, the Judge was perfectly entitled to bring into account, and indeed rely upon, the fact that the mother had agreed to overnight contacts some eighteen months before the hearing against the backdrop of the allegations she had made. She had indeed later suggested an increase in the number of nights. The court had, in the interim, extended the number of overnights yet further, and the Family Court Adviser (Cafcass) had advised that the frequency was about right albeit they could increase gradually. The Judge rightly acknowledged that domestic abuse can still play out in the court setting, and can directly affect the victims in the way in which they present their cases and potentially even agree to outcomes with which they are not instinctively content. The Judge, on these facts, satisfied himself that this was not such a case (see §26 above).

The Judge set out detailed reasons for concluding that a ‘joint lives with’ order was appropriate in this case; his reasoning is, indeed, entirely in line with the reasoning contained in the judgment of Poole J in the recent case of AZ v BX in which he said at [77] that:

I reject Ground 4 of the Grounds of Appeal; the evidential basis underpinning this ground is, at best, somewhat speculative. No exploration was sought of the father’s comment “it would depend on the circumstances” (assuming he said this – I could not locate this in the transcript of the oral evidence, and I could find no challenge to it in the evidence). Even if he had made the comments alleged, the mother has failed in my judgment to demonstrate that they were ‘relevant’ to the judge’s decision as to whether M should stay overnight on four, or more than four, nights per fortnight with her father at the present time or whether the order should be expressed as a ‘joint lives with’ order.

Cases involving disputed allegations of domestic abuse are some of the most difficult with which Family Court judges have to grapple. They are particularly difficult at the case management stage(s) because decisions with significant implications for the future conduct of the hearing, and of the family’s life, are called for; these are acknowledged at the highest level not to be ‘straightforward’ decisions (Re H-N at [7]). Judicial continuity is key in domestic abuse cases; judges should always consider retaining a case listed before them which contains allegations of domestic abuse; it is obvious that this case suffered from a lack of judicial continuity, which probably contributed to the lack of consistency of decision-making.

When presented with allegations of domestic abuse in private law CA 1989 proceedings, judges need to be astute to work out (ideally as early on in the process as possible) what is, and is not, actually relevant to the precise welfare issues which require adjudication. Peter Jackson LJ addressed this point in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 ([61]), which was cited with approval in Re H-N at [32] to the general effect that:

Therefore, as appropriate, judges in the Family Court when presented with a private law case involving allegations of domestic abuse where the issue of fact-finding arises, should press the parties or their advocates, as both DDJ Morris and this Judge properly did, by asking them directly at a case management, or later: “why do I need to determine this issue / these issues in this particular case?”; “what difference would it make to the welfare decision/outcome in this case in respect of this child even if I were to find the allegation proved?”. It is important to maintain focus on the individual circumstances of the particular case (Re H-D-H at [21]-[23]). In some cases, like this one, the decision not to hold a fact-finding hearing will leave unresolved some adult disputes between the parties, i.e., about their behaviour towards each other. So be it. If those issues are not relevant to the determination of the application, then court time should not be dedicated to their resolution.

For the reasons set out above, I therefore dismiss the appeal.

When granting permission to appeal Henke J imposed a stay on paragraphs 4-7 of the order of 18 October 2023. By the dismissal of this appeal, I forthwith lift that stay, and those paragraphs are now effective, though will need to be adapted to incorporate new dates for implementation.

At the hearing on 12 July 2024, I imposed a Reporting Restriction Order which prohibits the reporting of the name of the parties to this appeal, or their child. That order continues.

That is my judgment.