C (A Child) (Appeal: Fact-finding: Domestic Abuse), Re

This is an appeal against decisions made at a fact-finding hearing by Recorder Pollard on 16 October 2024. Permission to appeal was granted by Williams J on certain grounds of appeal, but not others. In particular, permission to appeal was refused in respect of the judge’s rejection of allegations that the father had sexually abused the parties’ daughter, to whom I shall refer as ‘C’.

At the hearing of this appeal, the appellant mother was represented by Dr Charlotte Proudman on 12 June 2025 and represented herself on 13 June 2025 when she made brief submissions in reply (courteously and eloquently). The first respondent father has been represented by Ms Hannah Markham KC and Ms Madeleine Whelan. The child, acting through her guardian, NYAS, has been represented by Ms Roseanna Cawthray Stern. I am grateful to all counsel, and to the mother, for their helpful submissions. I also record my particular gratitude to Ms Markham KC, Ms Whelan and their instructing solicitors and to Dr Proudman, all of whom who acted pro bono. Neither Ms Markham KC nor Dr Proudman appeared at the hearing below.

On 14 January 2025 the matter came before me. There was insufficient time to deal with the appeal and consequently I adjourned it. There was some debate at the hearing as to the ambit of the appeal. As is recorded in a recital to my order, the mother made it clear that she does not seek to re-open rape and sexual abuse allegations against the father, which were not proved on the balance of probabilities at the fact-finding hearing. Additionally, the mother agreed that the appeal has crystallised to the following issue:

“Given findings made by judge and other incontrovertible admissions by the father and the evidence before the trial judge, did the judge reach the wrong conclusion about how those findings and material should be categorised?”

The proceedings concern C, who is now aged 9. A striking and depressing feature of the background is that she has been the subject of litigation between her parents since 2016, in other words for almost all of her young life.

The parents never married. They first met and had a brief relationship when they were young adults: the mother was 18 and the father 21. They are now both in their fifties. The parents are professionals who at one stage worked at the same institution.

Some years after their initial meeting, in 2013, the parents met again and renewed their relationship. Matters progressed quickly between them. The mother became pregnant and C was born in October 2015. About a month later the parents separated. As set out by Recorder Pollard, ‘thereafter there were occasional visits and contact with family members present… [the] contact was fraught with difficulty’. C has lived with the mother since the separation. She has not spent time with the father since March 2020, that is for over 5 years.

There have been two sets of proceedings, the first of which commenced in 2016. There was a fact-finding hearing before DJ Collins which culminated in a judgment on 17 June 2017. DJ Collins had previously determined as a case management hearing that out of 18 allegations set out by the mother in a schedule, 12 should be determined by the court. In his eventual judgment, delivered following a hearing which lasted for 3 days, he proceeded to reject the allegations which the mother had made.

On 11 June 2018, DDJ Robinson made a final order for contact by consent: initially this was to be supervised, with a progression towards overnight contact which was to commence at the end of October 2018. The father gave an undertaking not to consume alcohol for 24 hours prior to contact and during contact and not to denigrate the mother.

On 11 December 2018, the previous order for contact was suspended by DJ Collins, pending investigations by the police and social services, after the mother made allegations that the father had touched C sexually.

On 14 October 2019, an order was made by DJ Collins removing the suspension.

On 3 December 2019, the mother applied for a further suspension of the contact. She raised issues in relation to the social services report which had led to the removal of the suspension. She also alleged that since the resumption of unsupervised contact, C had exhibited sexualised behaviour. The case had been referred back to social services. The alleged sexualised behaviour had been identified and described in a report from a play therapist to whom I shall refer as ‘PT’.

On 23 December 2019, DJ Collins made an order varying the arrangements for contact so as to remove the previous provision for overnight contact. He declined to require contact to be supervised, as the mother had requested. Comments made by the judge on that occasion led to him recusing himself, on 20 February 2020, on the mother’s application.

The matter next came before the court at a remote hearing on 20 March 2020, shortly after the imposition of the Covid-19 lockdown. Directions were given by HHJ Bedford.

On 7 April 2020, the proceedings were dealt with for the first time by DJ Pollard (as he then was). He made an order for video contact to take place while the Covid-19 restrictions remained in place; thereafter contact was to be supervised by the paternal grandmother subject to her signing a schedule of expectations provided by the local authority. Directions were given for the local authority to file a family assessment.

On 19 July 2020, the mother applied for a variation of the contact order so as to provide that it should be professionally supervised, a step which the local authority had recommended.

On 24 September 2020, the father made an application to enforce the arrangements for contact, which had not been taking place as ordered.

On 17 November 2020, DJ Pollard approved the instruction of a psychologist, Dr Bailie, to prepare a report in relation to the issues in the case and gave other directions. Dr Bailie was directed to prepare an interim report addressing the question of interim contact. C was joined as a party to the proceedings and NYAS were appointed to represent her. A social worker recommended that the father’s contact with C be suspended pending the assessment to the avoid the risk of C becoming re-traumatised.

On 23 March 2021, further directions were given by DJ Henry, including the discharge of the direction for the preparation of an interim report by Dr Bailie. The case was listed on the first available date after 18 June 2021.

The matter was listed on 1 November 2021, but this hearing was ineffective after Dr Bailie indicated that he needed to meet again with the parents.

On 6 April 2022, the mother made an application to reopen the fact-finding previously undertaken by DJ Collins.

On 28 April 2022, DJ Pollard gave further case management directions and listed the mother’s application to re-open the fact-finding for a hearing. The timetable set out in his order was delayed after the mother filed a statement running to 51 pages of narrative together with a lengthy exhibit.

On 5 August 2022, Recorder Pollard (who had retired as a full-time judge and thereafter sat as a Recorder) heard submissions in relation to the mother’s application to reopen the fact-finding and adjourned the matter for judgment.

On 7 September 2022, judgment was handed down. The judge’s decision was to accede to the mother’s application, which had been supported by NYAS. At paragraphs 10 and 11 he said:

“I should add that I do not make, nor should I make any criticisms of my brother judge District Judge Collins, for when he heard the case in 2017 he followed the practice which was then in place. It can be summed up as we dealt with specific allegations to the [Scott] Schedule rather than concentrating, as we do now, on a pattern of coercive, or, controlling behaviour. Judges, then, often told … parties to give one or two examples of the oldest, the newest and most serious of alleged behaviours. It was in my judgement as though the court was then looking at a still photograph or a scintella temperis rather than a video or a pattern of behaviour.

There has been a quantum leap in jurisprudence on this topic since 2017 when District Judge Collins heard this case as to how the concept of domestic violence is defined and more particularly how it is dealt with and in particular the use of Scott Schedules has been criticized as being inappropriate and inadequate.”

In explaining his decision to reopen the fact-finding, the judge said at paragraphs 29 and 30:

“29.

I further do not accept that the father’s submission that there is no new evidence or the criticism that Mr Howe QC in his Position Statement failed to show that there is new evidence to support the mother’s account of the father’s behaviour. District Judge Collins held that the father’s aggression was associated with his misuse of alcohol. However, there is now evidence that demonstrates that his aggression, anger, and irritation occur when not in drink. Dr Baillie in a report ordered by the court identified evidence and reached some pertinent conclusion about the father that tends to lend support to the mother’s evidence about the father’s behaviour towards her. Further, [the father] presented as anxious and occasionally quirky and irritable. Further, Dr Baillie reports that, [the father] tends to become irritable and argumentative when challenged or questioned particularly by females and sees himself as right and more able than those around him. [The father] struggles to work in partnership. He prefers his own approaches and bristles at being told what to do, or, others expressing an opinion, particularly it would appear if they are female as they are perceived by [the father] as less intelligent and/or in a position of authority. [The father] struggles to understand his own thoughts and feelings which reflect how he is with others and how others experience him. This pattern of difficulties goes across his relationship and fits with [the mother]’s experience of the father. Dr Baillie also had the opinion that [the father] caused the distress and emotional harm that [the mother] experienced with him. In the light of [the father]’s difficulties in reflecting on his own wellbeing and the impact that his words and behaviour on the mother and his difficulties in seeing this situation from other people’s point of view and Dr Baillie was concerned that [the father] would struggle to engage with a further assessment of [C]’s thoughts and feelings about him and would struggle to accept the findings of such an assessment. The father would likely struggle to engage in any intervention focused on him responding to [C]’s needs and being supervised in caring for her for the time being. He further reported on 13th September that the father referred to the contact supervisor as a nasty woman but denied being aggressive or intimidating however, describing the contact supervisor as having a breakdown so on 30th July 2017 the contact supervisor did not feel safe with the father so stepped out of the room and sought support and [the father] was repeatedly disrespectful to the contact supervisor and her colleague in front of [C].

30.

On 4th January 2019 [the father] was leaving long angry voicemails on social workers phones and presenting angry on the phone with professionals. [The father] by way of explanation once said, “once you say no to a woman, they don’t like it do they? In my experience. “As to father’s current drinking of alcohol use he described consuming half a bottle of red wine a night and having done so for the last eight years. [The father is] also said to have spoken at length and told a Miss [X] to “Shhh” when she sought to interrupt him, he also swore and became quite escalated in his presentation. That together with the mother’s statement at section 48 onwards, which can be found in the trial bundle at page 239, is where the mother describes the father’s abusive behaviour as [continuing]. At paragraph 53 the mother reports that the father sent an intimidating message to [the social worker], (page 240) and PT the play therapist the father also made allegations that the mother was a lesbian to a number of professionals and also accused her of being sexually involved with two of her friends who were then required to file statements in the proceedings and the father was considered [by] a GP to be unsettling and aggressive at the centre, (page 276 of the bundle) and a health visitor considered that he engaged in an inappropriate conversation about sex with her.”

The matter listed for a further case management hearing on 25 November 2022. On this occasion, Recorder Pollard gave further directions including for the filing of witness statements. The proceedings were listed for a pre-trial review (‘PTR’) on 14 February 2023.

On 14 February 2023, Recorder Pollard give further directions. These included a direction permitting the parties to file the bundle of text messages running to 2425 pages. Other directions made provision for the mother to file a composite schedule of allegations and a statement in support and for the father to respond. The matter was listed for an adjourned PTR and ground rules hearing.

On 19 June 2023, Recorder Pollard gave further directions including for the filing of an amended schedule of allegations and response. A yet further PTR was listed on 19 October 2023.

On 19 October 2023, Recorder Pollard gave further directions in relation to the attendance of witnesses at the fact-finding hearing and the evidence to be included in the bundles. He acceded to an application by the father that the play therapist, PT, should be called to give evidence. Recital 11 to the order provided as follows:

“AND UPON the Court indicating its view that:

i.

The Court shall not decide each and every allegation made by the parties but will look at the overall picture as to whether the mother’s case for a pattern of coercive and controlling behaviour on the part of the father is made out;”

The application was to be listed for a seven day hearing in June 2024, although in fact a notice of hearing was issued by the court setting the case down in October 2024.

Recorder Pollard finally heard the matter in October 2024. That is, almost five years after the mother had applied, for the second time, for a variation and/or suspension of the terms of a contact order made in 2018. Throughout that period C’s life had been overshadowed by the fact that very serious allegations had been made against her father, including that he sexually abused her. It had previously been determined that she should have regular staying contact with her father. The length of time it has taken to resolve these allegations caused her relationship with him to be severed. At one time the father was offered supervised contact, which he declined. Standing back, I consider the length of time taken to resolve the factual issues to be shocking as well as harmful to C. The precise reasons for the delay are unclear to me, but it is accepted that some of the delay has been caused by the father and some by the local authority which has been involved in the case. Inevitably, this appeal has added to the delay.

As had been directed, the mother’s case was encapsulated in an amended schedule of allegations dated 26 June 2023. The document begins by setting out an overview of her case, as follows:

“1.

Abuse of mother

The mother seeks findings that the father was a perpetrator of domestic abuse in the form of sexual abuse, and of coercive and controlling behaviour both before and since their separation. Since separation the father has threatened the mother in order to get his own way through intimidation by making false claims against her and her family, including her mental health and threatening to damage her professionally. He intimidated her by threats to seek her out and take [C] away from her and to gain custody. This behaviour extends to his interaction with professionals.

2.

Abuse of [C]

The mother seeks findings that [C] was physically and sexually abused by the father as well as subjecting her to emotional abuse by his coercive and threatening behaviour towards the mother by seeking to undermine [C]’s positive relationship with both her mother and her maternal grandmother.”

The schedule then proceeds to list a total of 26 ‘additional specific findings which the mother seeks’. Of these ‘additional’ allegations:

I was informed by Ms Cawthray Stern, who acted on behalf of NYAS at the hearing below, that the hearing, as envisaged, lasted for a total of seven days. Despite the four bundles before the court exceeding 5,000 pages, there was no reading day. The first four days of the hearing were taken up with hearing oral evidence from the parents, the social worker, Dr Bailie, the paternal aunt and the mother’s niece. PT had been expected to give evidence, but did not do so, a matter that was the subject of adverse comment by the Recorder. The mother gave evidence for approximately 6 ½ hours spread across two days; the father for approximately 4 hours. At the conclusion of the evidence (on Friday 11 October 2024), the Recorder directed the parties to file written submissions by 12 noon on the Monday, which was done.

The mother informed me that, although she had direct access counsel acting for her pro bono at the hearing, she prepared the closing submissions herself. Although she may have had some input into the submissions, her counsel put his name to them which he would not have been able to do professionally unless he endorsed their content.

After considering the written submissions, Recorder Pollard delivered an oral judgment on Wednesday 16 October 2024.

An agreed note of Recorder Pollard’s judgment is contained in the bundle for this appeal.

On 17 October 2024, the Recorder made an order which, at recital 3, set out that the court made the following findings:

Recital 4 to the order provided as follows:

“And upon the court asking for the mother to confirm her address to the father for the purposes of indirect contact given no findings were made of domestic abuse and on the basis that the father agrees to provide an undertaking not to attend the address. The mother refused to tell the father her address” (my emphasis)

On their face, recitals 3 and 4 are inconsistent in that the former records a finding of ‘controlling behaviour’, which manifestly is a form of domestic abuse. Moreover, Recital 3(c) is plainly incorrect, in that it is clear from the judgment that findings against the father, including findings of abusive behaviour, were indeed made in respect of some of the mother’s allegations in the schedule. These points are rightly accepted on behalf of the father.

With hindsight, it may have been a mistake to attempt to summarise a lengthy fact-finding judgment into one or two short recitals. A note of the judgment has now been agreed and the content of the judgment largely speaks for itself.

My own summary of the findings made (and not made) is as follows:

Apart from the stairgates incident, is not altogether clear from the judgment which instances of the father’s behaviour the judge considered fell into the category of ‘directive, stubborn or assertive’ as opposed to ‘abusive’ behaviour.

Although the judge made findings in relation to the majority of the specific incidents set out in the schedule of allegations, the following allegations were not addressed:

The schedule of allegations included an allegation (number 16) that on 7 December 2015 the father sent the mother abusive text messages which caused her distress. The father denied that the messages in question were abusive, and asserted that they were ‘a fair reflection of [his] anguish at the time’. Some of the messages sent by the father on 7 December 2015 have been helpfully set out by Dr Proudman within a ‘Schedule of Incontrovertible Evidence’ which she has prepared.

The messages identified by Dr Proudman in her schedule and the ones which preceded them on 6 December 2015 read as follows:

“I will never never accept missing out on all of this because of your paranoia about me being violent toward you or [C]. This thing that has developed in your head seems to me to be based on your previous bad experiences with men, most notably, your father. Unfortunately, your mum having also not experienced a loving relationship with a man is supportive of this rather than encouraging reconciliation. I'm willing to accept that we have issues to sort out before we can live together again but you have to try to get over your fundamental negativity toward men. I love both of you but a life lived as some part time divorcee fills me with dread and foreboding and i would never have considered having a child with you if I believed this would be the outcome. I understand you are not happy but you have to think of [C] and how she will feel.”

“when you go to work I'll have time off work and will look after [C]. I'm her dad as you say. I'm not really happy about your mum looking after her”

“I hope you've slept well because i have not,, oh well off to work for another week, i mean what I say about your mum, i cant believe [C] has to suffer with her, she's awful. Her house also smells damp and of old smoke which i can smell on [C] now it's totally disgusting, i can't believe what you've done, I'm going mental here, you've become evil since she's been born... I'm struggling not to hate you, I hate your mother, I don't want her going near [C], please tell her, as I said when possible [C] should come here, your mum's not got any track record with kids, from what you've said, burning your stuff, knocking the rat man and Christmas at 3 am. I want her as far away from [C] as possible, she's a total loin”

“I need Z to give her key back, I don’t want to see her. If she steps foot in the house or there’s any other people in here without my permission I’ll call the police. If the keys not back in the next few days I’ll be banging on her door for it”

“I am sorry for everything bad that has happened, everytime you’ve been upset all I’ve wanted is to make you love me again but I have no idea how to, sometimes you seem so angry with me and you make it seem impossible that things will be good again and I crumble inside and get devastated and try to make it better by pointing out your faults. I really love you and [C], I’m crying at work now. I really need a hug” (the highlighted emphasis has been added on behalf of the mother for the purposes of this appeal)

The judgment did not address these text messages. I was informed by Ms Whelan that counsel for the mother (not Dr Proudman) made clear at the hearing that the mother did not pursue findings in relation to these messages.

It also appears from the judgment, as submitted by Ms Markham KC, that the Recorder gave express consideration to whether the factual matters alleged by the mother as amounting to rape or other forms of sexual abuse constituted a pattern of coercive or controlling behaviour by the father. He held that:

“At time of behaviour, there was no coercive or controlling behaviour. What has happened has all been consented to. The mother might regret her actions now but at the time, there is no evidence that actions were designed to humiliate. Allegations 1,2, 3, 4, 5, 7 and 8 are not proven – they do not show a pattern of coercive or controlling behaviour towards the mother.”

From his use of the words ‘designed to humiliate’ it is clear that the Recorder had in mind the definition of coercive behaviour in PD12J (see below).

As will be apparent from my summary of the findings above, the Recorder did not limit his consideration of the father’s behaviour to the specific matters set out in the schedule. The findings about his conduct towards third parties such as the contact supervisor, the GP’s receptionist and Dr Bailie’s PA fell outside the scope of the 26 allegations in schedule, although they were within the ambit of the first overarching allegation set out by the mother at the start of the schedule. The three individuals in question did not give evidence (they had not been called to do so and had not filed statements) and the findings, permissibly, were based upon hearsay evidence such as documentary records and, in the case of his PA, the evidence of Dr Bailie.

One witness who had been expected to attend court to give evidence was PT, the therapist whom the child had been seeing. She had formed the view that the father had perpetrated sexual abuse against the child. The judge was critical of her failure to attend court and her evidence more generally. He held at paragraphs 32 and 33:

“I was supposed to be hearing evidence from PT. I must deal with that carefully. PT has played a prominent part in these proceedings. M was no longer intending to call PT to give evidence, and F wanted her to be called. PT refused to attend the hearing and give evidence, ostensibly on the grounds of her ill health. She supplied evidence that she was admitted to the hospital in May 2024 due to a flare-up of her ulcerative colitis. It appears she was discharged for follow-up by the community team on or about 17 May 2024. Other than that there is no evidence that she is unfit to attend court. PT wrote to the solicitors for NYAS on 18 September that she could not attend. On 1 October, she was asked if she would attend remotely. They chased on 4 October. On the same date, she said it was not possible to attend remotely – no reason was given why and there was no request for any special measures. It was a curt reply. It is clear PT does not want to attend court. She provided no supporting evidence that she is too ill and she dismissed attending remotely without giving reasons. PT’s evidence is of crucial importance as she was adamant that C was sexually abused by F. She has also taken what AC described as an unusually high involvement in the case but attending CP meetings and sending emails. She wrote to the CP conference on 14.04.22 and has written to the LA, GP and nursery. AC also confirmed that PT was of the view that F sexually assaulted C. The court-appointed expert Dr B did not agree that F had sexually abused C. He does not share PT’s conclusions.”

“PT has treated C from 2018-2020, she did so believing C had been sexually abused by F and C had made disclosures through play and C was a traumatized child – these were not AC’s views. The court was denied the chance to hear from her. The lack of medical evidence supplied by PT and the curt and dismissive way she declined to attend the hearing – it is a reasonable inference that she does not wish to appear and be subject to questioning about her diagnoses and actions. I have taken judicial note of this and considered what weight to place on PT’s evidence. I am not merely going to dismiss her evidence as it is of crucial importance, but I will pay little or no weight to her evidence as to the allegations that M seeks the court to make. As MW submits and I accept, C has never made an allegation to PT. PT has not reported to the police that C has made any allegation of abuse by F. I fully accept that PT is of no utility to the veracity of M’s allegations.”

It is also material for me to record that the Recorder made findings about the evidence of the parents which was relevant to their overall credibility as witnesses. At paragraphs 51 and 52 he said the following:

“M writes a letter to F’s solicitors on 14 Jan 2015 which post-dates allegations other than allegation 8 which M described as violent. She describes him as gentle and not violent in any way. M knew or ought to have known that the letter would be used in a court of law. She stressed her honesty in that letter. Despite giving myself a Lucas direction, this goes to M’s credibility over her evidence. If the allegations she seeks for me to make, then M is willing to write a letter which will be used in a court of law which is in total opposition and contravention to what she is now asking the court to make findings on. It’s a letter which was going to be used in a court of law.”

“What struck me in this case was when F gave his evidence he was a good historian, recalling details and facts precisely. It contrasted with M’s evidence which was vague and sometimes evasive.”

Section 1 of the Domestic Abuse Act 2021 (‘the 2021 Act’) defines domestic abuse as follows:

“(2)

Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—

a.

A and B are each aged 16 or over and are personally connected to each other, and

b.

the behaviour is abusive.

(3)

Behaviour is “abusive” if it consists of any of the following—

a.

physical or sexual abuse;

b.

violent or threatening behaviour;

c.

controlling or coercive behaviour;

d.

economic abuse (see subsection (4));

e.

psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.”

The definition is widely drawn, best illustrated by the inclusion in section 1(3)(e) of the 2021 Act of ‘other abuse’. This enables the court to reach the conclusion that a person’s behaviour is abusive even if it does not fall within any of the specific categories of abuse identified.

Section 76 of the Serious Crime Act 2015, which was amended by section 68 of the 2021 Act, makes it a criminal offence for a person to perpetrate controlling or coercive behaviour in an intimate or family relationship. Section 76(1) provides that:

“A person (A) commits an offence if—

(a)

A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,

(b)

at the time of the behaviour, A and B are personally connected…,

(c)

the behaviour has a serious effect on B, and

(d)

A knows or ought to know that the behaviour will have a serious effect on B.”

The expression ‘personally connected’ is defined in subsection (6).

Subsection (4) sets out the circumstances in which A’s behaviour will have ‘a serious effect’ on B: These are:

“(a)

it causes B to fear, on at least two occasions, that violence will be used against B, or

(b)

it causes B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities.”

Subsection (5) provides that “[f]or the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.”

The Family Procedure Rules 2010, PD12J, para 3 defines controlling and coercive behaviour as follows:

“‘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.”

In Re H-N [2021] EWCA Civ 448 and K v K [2022] EWCA Civ 468 the Court of Appeal addressed the approach to be taken by the courts to disputed allegations of domestic abuse. Amongst other matters it was established in those cases that:

In July 2022 the Home Office published statutory guidance in respect of domestic abuse. It does not have statutory force, but the publication is nevertheless a useful guide for practitioners in highlighting the different aspects of domestic abuse. My attention has been drawn by Dr Proudman to paragraphs 50-52, 68-69 and 99-100 in particular. Paragraph 99 contains the important observation that:

“There is never any justification for perpetrating domestic abuse and although the perpetrator and others may blame the victim for causing their behaviour, it is never the victim’s fault. Some perpetrators do not recognise that their behaviour constitutes domestic abuse, however, all perpetrators are responsible for their behaviour and should be held accountable for it.”

Although the parties were generally in agreement as to the relevant legal principles, one matter about which they disagreed was whether in order to establish certain types of abuse, it is necessary to show ‘intent’ on the part of the perpetrator.

On behalf of the mother, Dr Proudman submitted, that it is open to the court to make findings of coercive or controlling behaviour even if the perpetrator did not intend by his behaviour to act abusively. She referred me to GK v PR [2021] EWFC 106, where Peel J said at paragraph 40:

“I am troubled also that the judge at para 30 refers to many of the incidents as being "minor or even petty, but the real question for any future court having regard to the child's welfare is whether the words or actions alleged show a course of conduct by which [PR] is deliberately [my emphasis] coercive, controlling and undermining of [GK] so that domestic abuse becomes a serious issue in this case". I cannot accept that intentional misconduct is a pre-requisite for a finding of abusive behaviour. In this regard, I was referred to Re T [2017] EWCA Civ 1889 in which it was said at para 42 that: ‘…none of the authorities require that a positive intent to molest must be established’.” (emphasis in the original)

I was also referred by Dr Proudman to Traharne v Limb [2022] EWFC 27 where Cohen J said at paragraph 28:

“The parties agreed that in considering the allegations of behaviour I should approach the matter in this way:

i)

H's behaviour to fit within the definition of coercive and controlling behaviour must objectively meet that description. It was immaterial whether he intended his behaviour to have an effect on W; the test for the court is whether objectively his behaviour was coercive and controlling…”

Conversely, Ms Markham KC and Ms Whelan on behalf of the father and Ms Cawthray Stern on behalf of NYAS submitted that the observations made at first instance in those authorities were inconsistent with the Court of Appeal decision in Re H-N, where the court specifically endorsed PD12J, which contains definitions of coercive and controlling behaviour. It was submitted that the inclusion of the words ‘that is used to’ and ‘designed to’ within those definitions import an element of intent as an ingredient of these types of abusive behaviour. It was further submitted that the observation at paragraph 32 of Re H-N that ‘much will turn on’ the intention of the perpetrator underlines the point, as do the earlier observations of Peter Jackson LJ at paragraph 61 of Re L (cited above).

It is unnecessary for the purposes of this appeal to determine this issue and I decline to do so as I consider that fuller argument would be needed in order to come to a concluded view. I would observe that both Re H-N and Re L were concerned with the definition of domestic abuse in PD12J as opposed to its meaning under the Domestic Abuse Act 2021, which had not come into force when those cases were decided. Plainly, guidance set out in a practice direction cannot have the effect of narrowing the definitions of terms contained in a statute.

As I have recorded above, the definition of abusive behaviour under the 2021 Act was drawn widely, its overriding purpose being to consign to history the notion that abusive behaviour was confined to previously recognised categories of abuse such as physical abuse.

As I set out above, section 76 of the 2015 Act was amended by the 2021 Act. Pursuant to that section, a person can commit a criminal offence if they perpetrate coercive or controlling behaviour against a connected person and ‘ought to know’ that their behaviour has a serious effect on that person. This lends support to the arguments advanced by Dr Proudman.

Conversely, Ms Markham KC and Ms Cawthray Stern make the important counter-argument that the court should not, in this context, attach weight to the manner in which a statutory provision creating a criminal offence has been drawn. They further submit findings of abuse are made in order to establish a factual basis for assessing the risk which a perpetrator may pose to the other parent and the child. The intentional elements of coercive and controlling behaviour are integral aspect of these forms of abuse and highly material to any assessment of risk. Ms Cawthray Stern submits that a distinction can be drawn between these specific forms of abusive behaviour and other types of abuse such as verbal or emotional abuse in relation to which the intention of the perpetrator may be immaterial to the question of whether the behaviour is abusive.

As I have said, a determination on these arguments should await a case when the points raised are material to the decision.

The approach which an appellate court adopts to a first instance Judge’s findings of facts and evaluation of evidence has been considered in a number of authorities, including: Piglowska v Piglowski [1999] 1 W.L.R. 1360 at p.1372; Re B (A Child) (Care Proceedings: Appeal), Re) [2013] UKSC 33; [2013] 1 WLR 1911 at para 53; Fage v Chobani UK Ltd [2014] EWCA Civ 5 at para 114. The following points can be extracted from those authorities:

The appellate court must bear in mind the advantage which the first instance Judge had in seeing the parties and the other witnesses. This applies to questions of credibility and findings of primary fact and also to the Judge's evaluation of those facts: Piglowska.

The need for appellate caution in reversing the trial Judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact are inherently an incomplete statement of the impression which was made upon the Judge by the primary evidence. The Judge’s expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance, of which time and language do not permit exact expression, but which may play an important part in the overall evaluation: Piglowska.

The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment but also of a reserved judgment based upon notes. These reasons should be read on the assumption that, unless the Judge has demonstrated the contrary, they knew how to perform their functions and which matters they should take into account. This is particularly true when the matters in question are very well known: Piglowska.

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 the Judge misdirected themself: Piglowska.

It is only in a ‘rare’ case that an appellate tribunal will interfere with a Judge’s conclusion of fact. Examples include where that conclusion was one which (i) there was no evidence to support, (ii) was based on a misunderstanding of the evidence, or (iii) no reasonable Judge could have reached: Re B (A Child).

The reasons for this stringent approach by appeal courts include (Fage v Chobani):

 In Volpi v Volpi [2022] EWCA Civ 464, Lewison LJ characterised the approach to an appeal on a pure question of fact as a "well-trodden path" signposted by the following principles:

As Hayden J recently observed in Re A (Appeal: Findings of Fact) [2025] EWHC 1279 (Fam), “these principles shield the findings of a first instance judge with a robust and durable armour, though not, ultimately, an impregnable one”.

As I have recorded above, at the hearing before me on 14 January 2025, Dr Proudman, on behalf of the mother, agreed that the appeal had crystalised to the following issue:

“Given findings made by judge and other incontrovertible admissions by the father and the evidence before the trial judge, did the judge reach the wrong conclusion about how those findings and material should be categorised?”

As a consequence, the arguments advanced by Dr Proudman, both in her amended skeleton argument and in her oral submissions, helpfully concentrated upon that issue as opposed to addressing each of the grounds of appeal in respect of which permission to appeal had been granted.

In summary, the contentions advanced on behalf of the mother were as follows:

On behalf of the father, Ms Markham KC and Ms Whelan, submitted by way of a preliminary issue that it was not open to the mother to raise arguments at this appeal on the basis of the text messages, as this aspect of her case had been articulated in ground 4 of her Grounds of Appeal, in relation to which she had been refused permission to appeal.

Alternatively, Ms Markham KC and Ms Whelan submitted that the judge could not be criticised for not directly addressing the text messages in his judgment in circumstances where (i) none of them was put to the father in cross-examination, (ii) the mother’s schedule of allegations did not seek specific findings in relation to any messages apart from those sent on 7 December 2015 as to which her counsel stated expressly that these were not relied upon as evidence of abuse, and (iii) it was not suggested on behalf of the mother in her closing submissions that specific findings were sought in relation to text messages; they were referred to in just two lines of the document as part of the ‘[e]vidence relied upon as to the father’s character, demeanour and presentation apart from the mother’s evidence’ (something similar was said in the mother’s opening position statement for the hearing).

Ms Markham KC made the point that it would be wholly unfair for an appellate court to attempt to make findings about the messages when the father was not given any opportunity to comment upon them in his evidence. She says that had findings been sought in relation to the messages, it would have been necessary for the court below to have considered the context in which they were sent. She emphasised that a significant number of the messages now relied upon were sent in circumstances where the father, for the second time, was having to defend himself against serious and false allegations of sexual abuse including abuse against his own daughter; as a consequence of the allegations he was facing, his relationship with his daughter was in the process of being severed.

Ms Markham and Ms Whelan do accept that the recitals to the order do not adequately reflect the findings made by the judge and therefore concede that, to this extent only, the appeal should be allowed.

As to the Recorder’s judgment, Ms Markham KC and Ms Whelan emphasised the limited ability of the appellate court to interfere with findings of primary fact by the trial judge as well as the judge’s evaluation of those findings.

On behalf of NYAS, Ms Cawthray Stern essentially supports the position of the father in relation to this appeal. She emphasises the fact that this appeal has caused the welfare investigations in relation to C to be placed on hold. She submits that, even if the court were to conclude that the judge was wrong not to consider and/or make findings about the messages, it would be disproportionate for the court now to remit the matter to enable further fact-finding to take place in relation to that issue.

I begin by reminding myself about the limited functions of an appeal court in reviewing findings of fact made at first instance. The point made in Piglowski about the need to avoid undertaking a narrow textual analysis of a judgment has particular force in circumstances where I am considering an agreed note of judgment, from which some of the judge’s observations may well be missing, as opposed to a full transcript.

So far as the first issue raised by Dr Proudman is concerned (see para 72(a) above), it is accepted by all parties that the recitals to the order do not reflect the findings made by the judge. I agree. I have already set out above my own summary of the findings which the judge made.

I propose to allow the appeal on that basis and simply delete the recitals from the order. I do not consider it necessary to replace them with alternative recitals as it will be open to professionals considering this matter simply to read the judgment as well as this judgment.

I am unable to accede to the submission that the judge wrongly ‘minimised’ his findings against the father. I remind myself that the need for caution about interfering with a judgment below extends not only to a judge’s primary findings but also to his evaluation of those findings. The judge had the advantage of hearing the parents and other witness give oral evidence over several days and was uniquely placed to form an assessment about each of the parties and their evidence. I am not able to replicate his role. He made important findings about the credibility of the parents which he will have borne in mind as part of his overall assessment. It is not possible to say that the conclusions he reached were ‘rationally insupportable’.

I further consider that the findings against the father contained within the judgment (as opposed to the summary in the recitals to the order) were serious findings: any finding of abuse, in my judgement, is a serious matter. I do not accept that the judge, in his overall analysis, ‘minimised’ the father’s behaviour. In relation to the incident on 11 April 2015, he described the father’s behaviour as ‘appalling’ as well as labelling it as ‘abusive’. In my view, ‘appalling’ is a strong word and not a term which minimises what was found to have occurred on that occasion.

Standing back and looking at the findings, it is plain that the judge reached the conclusion that on repeated occasions the father had behaved towards the mother and others in a way that was highly inappropriate. Although some of the father’s behaviour fell short of attracting a finding of abuse, findings instead being made that he was ‘confrontational and oppositional’ or ‘stubborn and selfish’, the judge was clear that on other occasions he had indeed behaved abusively. He made specific findings against the father as ‘examples’ of his abusive behaviour. In my judgement, the fact that this abusive behaviour occurred against a background involving other inappropriate behaviour made it more serious. Although the judge did not use the expression ‘pattern of abuse’, based upon his findings it could not be said that this was a case involving one or two isolated incidents. The fact that some of his behaviour occurred in front of C was also, in my view, a serious matter, demonstrating as it did the father’s inability to restrain his behaviour in front of his daughter.

As I have already observed, the judge’s use of the word ‘limited’ when referring to his finding of controlling behaviour needs to be read in the context of his earlier rejection of the allegations that the father was responsible for sexually abusive behaviour which also amounted to coercive and controlling behaviour. I do not consider that in using the term, the judge was intending to reduce the seriousness of the findings he had made, merely to emphasise the fact that he had not made the more serious findings sought by the mother. As I have already observed, the judge had made it clear that his findings about specific incidents were ‘examples’ of the father’s abusive behaviour towards the mother and others. He did not state that his abusive behaviour had occurred only on those occasions and I do not consider that he use of the word ‘limited’ was intended to convey that either. This is illustrated by the fact that the judge said that his findings of controlling behaviour were limited to ‘those issues’ (my emphasis) as opposed to ‘those incidents’ he had identified in the judgment. His findings also need to be seen in the context of Recital 11 to his earlier order dated 19 October 2023 where he had made clear that his focus would be upon looking at ‘the overall picture’ as opposed to making findings in relation to every specific allegation.

Whilst it might have been preferable had the judge addressed specifically each of the allegations in the mother’s schedule, including her allegation 10, I cannot find that he was wrong not to do so. Indeed, at an earlier hearing he had already set out that this was the approach he intended to take. That decision had not been appealed. Allegation 10 entailed an assertion that when the mother was pregnant and asleep at 5am, the father had shouted ‘your stupid dog is about to walk on the carpet’. It is not possible for me to surmise what conclusion the judge may have reached about this, but I consider it highly unlikely that any specific findings he may have made would have caused him to alter his overall evaluation. As to allegation 12 (the stairgates incident), this was specifically addressed by the judge at paragraph 62 when he found that on this occasion the father’s behaviour was ‘stubborn and selfish’ but ‘not necessarily abusive’.

Having considered the submissions made by Ms Cawthray Stern in particular, I am unable to accept the arguments advanced on behalf of the mother about the text message referring to C having said that the father had said that the mother would die. Although there is no cross-appeal, it would appear that the judge may have misunderstood the evidence about this issue. I was told by Ms Cawthray Stern that the comment in question was made by the father in a text message in which he sought to explain a suggestion that C had told the mother that ‘daddy says you should die…’. Although the text message was inappropriate and arguably abusive, I find it difficult to see how it could be interpreted as an admission by the father to having made such a remark. The suggestion on behalf of the mother that the social worker had given evidence that such a remark had been made is also a mischaracterisation of her evidence. Ms Cawthray Stern explained that a question had been put to the social worker inviting her to comment upon the (incorrect) proposition that the father had ‘admitted’ telling C that the mother was going to die. Unsurprisingly, the social worker expressed the view that to have made such a remark would be ‘emotionally damaging’ to C. In the absence of a cross-appeal, I am not in a position to interfere with the judge’s finding about this message, but there is no basis for me to elevate the finding in the manner which the mother invites me to do.

As to the arguments about Dr Bailie’s evidence, it is well established that there is no need for a judge to make reference to each piece of evidence in a case. The judge heard oral evidence from Dr Bailie as well as reading his report. It was a matter for the judge to assess which aspects of the psychologist’s evidence he found most helpful. In my view, it is entirely apparent from the judgment how the judge placed reliance on this evidence in reaching his overall conclusions. He made explicit or implicit reference to Dr Bailie’s evidence at paragraphs 62, 65, 66, 68, 69 and 70 of his judgment. It is also clear from the Recorder’s earlier judgment in September 2022, that he had a good understanding of Dr Bailie’s evidence and its significance to the issues in the case.

It is clear that Dr Bailie’s evidence was a crucial part of the judge’s finding that the father lacks the ability to understand the effect which his behaviour has upon others, a character trait which has led to him causing upset and behaving abusively towards the mother and others. In my judgement, that is a finding whereby, contrary to the mother’s submissions, the judge addressed directly the father’s lack of insight. The mother is correct to say that the judge did not proceed to make findings about the risks posed by the father as a consequence of his lack of insight, but in my judgement issues of risk can more appropriately be addressed when the court comes to make welfare decisions. The father will have had time to reflect upon the judge’s findings and his reaction to those findings will form an important aspect of any evaluation of risk in this context.

I do not accept the submission that the judge failed to consider the definitions of domestic abuse in PD12J. Judges should be taken to be familiar with the relevant legal principles unless the contrary is demonstrated. This is especially the case, when the principles in question are as well-known as those found in PD12J. The judge had demonstrated a detailed understanding of the principles in his September 2022 judgment.

I do accept the point that the judge fell into error when, after delivering his judgment, he was asked to clarify the fact that the finding he had made was that the father had perpetrated controlling behaviour as opposed to coercive behaviour. In responding to this request for clarification, the judge agreed with the proposition and added that ‘there have been no threats’. Dr Proudman is right to point out that the existence of a threat is not necessary to establish an allegation of coercive behaviour in accordance with the PD12J definition. I bear in mind, however, that this comment was made in discussions after the judgment had been given.

The reason the judge had been asked for a clarification is that whereas at paragraphs 69 and 70 he had referred to the father’s ‘controlling’ behaviour, in his summary at paragraph 72 he said (as recorded in the note of judgment) ‘other than the limited findings of coercive behaviour, it is hoped that this matter will now rest on those facts being found and others not being found and there is a clear factual matrix’ (my emphasis). In using the word ‘coercive’ at paragraph 72, I think it is likely that the judge made a typographical error; the operative paragraphs in which he made findings were the earlier paragraphs which he was purporting to summarise. Accordingly, although the judge was mistaken to suggests that threats were required for a finding of coercive behaviour, I do not consider that this mistake affected the findings he made.

The further point made by Dr Proudman is that the judge was wrong to say that there had been ‘no threats’ and also wrong to find that there had been no coercive behaviour, whether or not any threats had been made. She points to a number of instances where she submits that the evidence clearly establishes that the father was threatening or where his behaviour was incontrovertibly coercive. The evidence upon which she relies in this respect is essentially contained within the various text messages sent by the father which were not addressed by the judge. I deal with these separately below.

Dr Proudman additionally draws attention to other evidence from which she submits the judge should have reached the conclusion that the father’s behaviour was threatening and/or abusive. In particular, she pointed to the source evidence from third party professionals in relation to which the judge had made certain findings. As I have already said, the third parties in question did not give evidence; in the case of PT the judge was critical about her failure to attend and made adverse comments about her evidence generally. In circumstances where the judge was having to rely upon hearsay evidence, it seems to me that he was entitled to be cautious in relation to the findings he made. As an appellate tribunal, I am required to be cautious before interfering with a judge’s evaluation and I do not consider I have a proper basis for doing so in relation to these matters. In circumstances where I have not heard the evidence I am not in a position to make findings, not made by the judge, that the father’s behaviour was coercive or threatening.

Ms Markham KC submits that allegations relating to third parties could not amount to domestic abuse as the third parties are not ‘connected persons’ for the purposes of the 2021 Act. Whilst there may be some validity to this argument, I do not accept that aggressive behaviour targeted towards a third party can never amount to domestic abuse against a person who is a connected person. It is possible to envisage circumstances in which a third party bears the immediate brunt of a perpetrator’s behaviour, but the behaviour has the effect of being coercive or controlling as regards the connected person. The point does, however, have force as to the need for particular caution when an appellate tribunal is asked to make additional findings on the basis of allegations of this nature.

I turn now to consider the voluminous text messages which did not feature in the judgment below. A significant part of the parties’ arguments concentrated on this aspect of the case.

I am unable to accept Ms Markham KC’s preliminary submission that it is not open to the mother to raise arguments before me about the messages on the basis that she was refused permission to appeal in relation to the messages. Ms Markham KC’s argument is based upon the fact that Williams J refused permission to appeal in relation to the mother’s Ground 4 (amongst other grounds) of her Grounds of Appeal. I was taken to version of the Grounds of Appeal in the court bundle. Ground 4, of the grounds as set out in that document, provides as follows:

“The judge failed to address or consider the evidence of F’s verbal abuse towards M in text messages and the father’s lack of insight into his abusive behaviour.

The judge did not adequately address the verbal abuse documented in SMS messages between M and F, which were provided in the supplementary bundle. These messages clearly demonstrate F’s abusive behaviour, but the judge failed to consider them in the judgment. Furthermore, F showed no insight into his abusive conduct, including denying that actions such as punching a man, calling M derogatory names, and abusing a health visitor were wrong. The judge’s failure to acknowledge this lack of reflection undermines the credibility of F’s testimony.”

Conversely, however, Ground 3 of the Grounds of Appeal (in the version within the court bundle) also makes extensive reference to the text messages; there is no suggestion by Ms Markham that the mother is unable to pursue this ground. Moreover, in giving his reasons for the grant of permission, Williams J said the following:

“The focus on the Scott Schedule appears also to have led to a degree of compartmentalisation and obscured the importance of considering the totality of behaviour including patterns of behaviour. The findings made about the fathers violent, threatening, and intimidating behaviour to M and others, including professionals, together with the evidence of Dr Baillie, the fathers admitted alcohol misuse and the contents of the messages in the Supplemental Bundle do not appear to have been considered in their totality and whether they potentially supported a finding of a pattern of threatening, emotionally or psychologically abusive behaviour.” (my emphasis)

In my view, that passage makes it plain that Williams J intended the ambit of the appeal to include consideration of the text messages.

Having reflected on the matter since the hearing, it occurs to me that a degree of confusion may have arisen as to the ambit of the appeal as a result of Dr Proudman having amended the grounds of appeal (helpfully I would add) so as to renumber them and list only those grounds in relation to which permission was granted. The Grounds of Appeal now contained in the bundle are thus not numbered in the same way as those which were considered by Williams J. I therefore strongly suspect that the fourth Ground considered by him was different from the one to which my attention was drawn. If I am wrong about this, however, my conclusion remains the same for the reasons set out above.

I have read the messages set out in the helpful schedule prepared by Dr Proudman. They do not comprise the totality of the messages upon which the mother relies. Some of them, it seems to me, are plainly borne of the father’s frustration at having to defend himself over a prolonged period of time in which he was being denied a proper relationship with his daughter. Contrary to Dr Proudman’s submissions, I do not, for example, consider that there is a proper basis for asserting that the father was being controlling in declining to go to mediation whilst a police investigation was ongoing. Nor do I consider there to be a basis for suggesting that the father was being emotionally and/or psychologically abusive in refusing to have contact at the maternal grandmother’s home on the basis that the previous two sessions had not gone well. He may have been misguided to adopt that stance, but that is a different matter.

On the other hand, there are other messages which fall into a different category. On their face, the best that can be said about some of them is that they are rude, insulting and disrespectful. I accept that a full consideration of the messages could have led the judge to conclude that a number of them were abusive. I also accept that, considered in their totality, including the fact that some were sent late at night, it would have been open to the judge to find that they amounted to a pattern of behaviour that could be described as coercive or controlling. It would similarly have been open to the judge, had the messages been fully considered, to reach the conclusion that they amounted to yet further ‘examples’ of the father’s abusive behaviour and his inability to understand the effect which his behaviour has upon others. When I initially considered the matter, I was troubled by the fact that the judgment omits mention of the messages and I formed the preliminary view that there might be merit in the arguments advanced by Dr Proudman that the appeal should be allowed on that basis.

I have now had the benefit of hearing submissions on this issue from Ms Markham KC and Ms Whelan and, in particular, from Ms Cawthray Stern (who, along with Ms Whelan, was present at the hearing). The reason the messages do not feature in the judgment has become plain. As I have recorded above, none of them were put to the father in cross-examination and they barely featured in the mother’s opening or closing written submissions. The only text messages about which specific findings were sought in the mother’s schedule of allegations were those sent on 7 December 2015 as to which the judge was told that the mother did not rely upon them as evidence of abuse.

In all of these circumstances, in my judgement the judge cannot be criticised for failing to deal in terms with the messages in his judgment. He had previously given permission for more than 2,000 pages of messages to be adduced in evidence in a supplemental bundle. But in a situation where he was not taken to the messages at the hearing, where they were not put to the father and where they were hardly addressed in the written documents, I am unable to uphold the mother’s contention that the judge was wrong not to make specific findings about them.

Although I can see the force in Dr Proudman’s argument that some of the messages are clearly abusive in nature, I am persuaded by Ms Markham KC’s submission that it would be wrong for me to attempt to make findings about them given my limited role as an appellate tribunal. I am also persuaded by Ms Markham KC’s argument that making findings against the father would be unfair when I have not heard the father’s evidence and when he has not previously been cross-examined about the messages. I further agree with the submission made by Ms Markham KC that any tribunal contemplating making findings would need to consider the context in which the messages were sent. She makes the point that the majority of the messages now relied upon by the mother were sent by the father in the most stressful of circumstances where he was under investigation for perpetrating serious sexual abuse against his daughter. I emphasise that I do not consider that being in a stressful situation can ever be a justification for domestic abuse. Nevertheless, to the extent that any messages were found to be abusive, the circumstances in which they were sent would be relevant to the assessment of any future risk posed by the perpetrator.

As I have recorded above, Ms Cawthray Stern submitted that, whatever view I took of the judge’s failure to deal with the messages, I should not remit the matter back for further consideration. To do so, she submitted, would be disproportionate given the welfare issues engaged by the case. She highlighted the length of time the fact-finding process has taken thus far and the fact that it has prevented any progress from being made in relation to a determination of the welfare issues for C. I am in complete agreement with this submission. The length of time over which the proceedings have been ongoing is extraordinary. In my view, this lengthy delay is likely to have been harmful to C. The severance of her relationship with her father for several years is likely to make its restoration more complicated. There is an urgent need to draw a line under the fact-finding process so that the court can begin to engage with the welfare issues involved.

Moreover, as I have highlighted above, in making his findings against the father, the judge stated that the incidents which he addressed were ‘examples’ of his abusive behaviour, not that they were the only instances of it. In all of the circumstances of this case, I consider that it would be disproportionate now to undertake further fact-finding, the outcome of which might well underscore this point but not result in any substantially different conclusions about the father’s personality and his capacity to behave inappropriately or abusively.

Although I have found that the judge was not at fault in failing to address the messages, I do regard it as unsatisfactory that they were not dealt with. The question of whether they were abusive remains unresolved and has the potential to be a festering sore. The solution, however, is not to hold a yet further fact-finding hearing, for the reasons I have given. Whether or not the sending of these messages falls within one or more of the categories of abuse identified in PD12J, there is little room for doubt that the content of a number of them was wholly inappropriate. While the father’s stressful circumstances may well be a substantial mitigating factor, I find it difficult to see how he can advance any proper justification for some of the messages in question. Any court making welfare decisions for C, is likely to want to consider whether the father understands that it is wrong for unwelcome messages of that nature to be sent. That issue can be investigated – proportionately I emphasise – as part of the welfare evaluation and does not require a separate fact-finding hearing.

In all of these circumstances, I have determined that the appeal should be allowed only to the extent that Recitals 3 and 4 should be removed from the court’s order. Any tribunal or professional tasked with evaluating C’s welfare should instead consider the judgment of the court below and this judgment.