Royal Courts of Justice
Strand
London, WC2A 2LL
BEFORE:
MR JUSTICE TROWELL
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BETWEEN:
M
Appellant
- and -
F
Respondent
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MR WILSON appeared on behalf of the Appellant
MS ADAMS appeared on behalf of the Respondent
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APPROVED JUDGMENT
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Digital Transcription by Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
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MR JUSTICE TROWELL: This is my judgment in the proposed appeal of M from the order of Her Honour Judge Robertson of 21 October 2025. Her Honour Judge Robertson, among other things, discharged a without notice non-molestation order made by District Judge Barrie on 24 September 2025 and it is that discharge which is the subject of this appeal.
The Respondent is F. It was his behaviour that had been restrained by the non-molestation order.
Before me the Appellant is represented by Tom Wilson and Goodman Ray and the Respondent is represented by Tori Adams and Dawson Cornwall. I am grateful to all the lawyers in this case for the assistance with which they have provided me.
By way of a very brief background, I set out that the Appellant and Respondent had been living together until September last year and have a child together, Z, who is now aged one.
Both parties are Spanish citizens.
There was a physical and apparently violent incident between the parties on 22 September 2025.
The Appellant attended court as a litigant in person on 24 September 2025 with a C100 completed the day before. DJ Barrie made without notice Children Act orders, in particular prohibited steps orders preventing the removal of Z from the jurisdiction, and a without notice non-molestation order. He, or she, if DJ Barrie is a woman, provided for the matter to return to court for an on notice hearing on 21 October 2025.
There was before DJ Barrie the Appellant's C1A, which said as follows:
On 22 September 2025 the Respondent dragged me on the floor, exposed me naked in the commune flat corridor (neighbour attended), loss of consciousness, seizure, ambulance to [Hospital]. Police arrested him.
Same date, 22 September 2025. Child present. Thrown onto bed at 4 am. Developed 39 degrees C fever. Father blocked paracetamol saying I was crazy. Took her to nursery despite high health concerns. Attended hospital with grandfather-in-law (mother).
Same date. Respondent stole British and Spanish passports. Threatened to take her to Spain while I was hospitalised. Family attempted to collect child from nursery. Continuous emotional abuse, calling me unfit and mentally unstable to take care of.
23 September 25, Respondent released from police custody, whereabouts unknown.
Behaviour started when pregnancy (2 September 2023) and after given birth. Social isolation and insisting that he was the only one in my life who cares about me."
DJ Barrie also recorded the following submissions, albeit on the Children Act order:
The Applicant attended in person and informed the court that there was an incident on 22 September 2025 at the family home. The Applicant alleges that the Respondent (1) threatened to remove the child from the jurisdiction; (2) attempted to leave the home with the child's British and Spanish passports; and (3) assaulted the Applicant, resulting in a neighbour telephoning the police and ambulance.
The Applicant was taken to [Hospital] and the Respondent arrested.
Whilst the Applicant was in hospital, the child's nursery contacted her as members of the paternal family had attended to attempt to collect the child.
The police have the child's passports. The whereabouts of the Applicant's passport is unknown. The Applicant believes the Respondent has this.
The Applicant remains extremely concerned about the Respondent removing the child from this jurisdiction even without a passport as she says the paternal family are well connected in Spain, particularly at [the local airport].
The Applicant advised that this incident happened in the context of an extended period of abuse and her failed attempts to leave the relationship.
The court was satisfied that there was a real imminent risk of the child being removed from the jurisdiction."
On 14 October 2025 the Respondent issued a C2. He too included a C1A in which he relates the following:
October '24 to September '25. The mother has been emotionally and psychologically abusive to the father. The mother would often threaten to kill herself as a form of manipulation and control of the father.
October, March and September 2025. The mother has forged false documents, committed fraud, lied to the authorities and stolen hospital property to achieve her objectives.
April 2025. The mother slapped the father during an argument about cleaning.
10 September 2025. The mother physically assaulted and became verbally abusive to the father. The mother's father was present at the home and witnessed this incident.
10 to 21 September 2025. The mother was emotionally and psychologically abusive to the father. The mother would lock herself in the bedroom with the child. On the same day, the mother sent threats to kill herself to the father. She also sent threats to sleep with other men if the father refused to leave the house. The father removed the screws from the door locks of the bedroom and living room as a safety measure to ensure the mother and child's safety.
10 to 21 September 2025. The mother was emotionally and psychologically abusive to the father. On 21 September 2025 the mother repeatedly pressured the father to leave the family home with no justification. The mother unilaterally contacted the estate agents to remove the father from the joint tenancy. Estate agents confirmed it was a joint tenancy with a six-month non-breach contract and no changes could be made. Following this, on 22 September 2025, the mother fabricated allegations against the father to remove him from the flat.
15 September 2025. The mother has been financially abusive to the father. The mother knows the father was covering most family expenses and removed his access to a jointly owned limited companies bank account.
22 September 2025. The mother has falsely alleged the father has neglected the child when they developed a 39 degree fever. The father, to avoid any contact, slept on the sofa. The child did not wake up throughout the night or show any signs of illness. The next morning, the father took the child to nursery. The mother did not express any signs of concern, hugged the child and said goodbye at 9 am for nursery drop-off.
22 September 2025. The mother physically assaulted the father by lunging at the father semi-naked, attempting to take his phone and laptop from him. She struck his work laptop and demanded his phone. As he tried to leave, she grabbed his backpack from behind, pulling herself along the corridor. Minor knee marks were self-inflicted. Unable to stop him crossing the threshold, she jumped naked into the communal area, shouting false allegations.
22 September 2025. The mother has made false accusations that the father stole British and Spanish passports and threatened to abduct the child to Spain. Upon seeing the erratic behaviour of the mother, the father was concerned for the mother and the child's safety and called the police.
23 September 2025. The mother alleges she does not know the father's whereabouts. This is false as the police were aware of the father's whereabouts at all times. He also voluntarily informed social services of his location.
Pregnancy with a child and post-birth. The mother has falsely accused the father of socially isolating her. During the entire pregnancy, the mother has always spoken highly of the father, which is evidenced in her medical records. The father has always supported the mother's pregnancy and both happily celebrated the pregnancy and the child's birth with family and friends.
On the 21 October 2025 at an on-notice hearing, Her Honour Judge Robertson discharged the non-molestation order and approved provision for the mother's solicitor to hold Z’s passports and consequently discharged the prohibited steps order. The judge made provision for evidence from the parties in relation to their cross-allegations as to domestic violence and the schedule of allegations each. The judge made provision for police disclosure in relation to the incident of 22 September, witness evidence from the neighbour, hospital records, a statement from the parental witness and a letter from the local authority setting up their involvement with the family.
The judge considered these matters were of potential relevance to the dispute between the parties as to child arrangements. I am told that there has subsequently been a hearing in December last year and another judge on that occasion considered that there needed to be a fact-finding hearing in relation to these allegations and that has been set down for four days in August 2026.
Further, there has been a recent application by the mother to relocate with Z to Spain. That, I am told, is before the court tomorrow for directions. It is in the light of that hearing that I have delivered this judgment orally and somewhat hurriedly.
The matter came before me for directions on the appeal. Her Honour Judge Robertson had stayed the discharge of the non-molestation order for, I believe, a week. I extended that stay pending this appeal by my order of 27 October 2026. That order set this matter down for a hearing on 20 February 2026, both as to permission and the appeal itself.
That hearing was adjourned because the transcript of the judgment had not come through. In fact, an approved transcript only arrived this morning and the transcript which did arrive did not cover the judge's responses to an application made on behalf of the Appellant for permission to appeal. I was, however, provided with an agreed note of that response.
I turn now to the argument for the Appellant. In summary, this can be stated as Her Honour Judge Robertson discharged the non-molestation order on the basis of factual conclusions and an assessment of risk which she was unable to properly make. Four particular grounds are alleged.
The judge had no evidential basis to depart from DJ Barrie's assessment of the need for a non-molestation order.
The judge was wrong to determine the incident of 22 September was situational, i.e. it occurred on the breakdown of the relationship.
The judge was wrong to determine there was no future risk of molestation. This is, in fact, a continuation of the same argument that the judge wrongly categorised the incident of 22 September as situational.
The judge was wrong to accept an agreement not to attend the home offered by the Respondent was sufficient protection for the Appellant. Reference here is made to section 46(3)(a) of the Family Law Act 1996.
As to the arguments for the Respondent, in summary, the argument is that the judge assessed the matter in the round. There were five circumstances that she could rely on that enabled her to reach the conclusion that no order was necessary.
The 22 September was a high-conflict situation. That situation had now passed.
That there had been a month since the previous order and there was no evidence of breach during that time. It is particularly notable that in the two weeks of time that it took before the service of injunction on the Respondent, there was no allegation of molestation.
Bail conditions provided by the police gave some additional comfort to the Appellant.
The agreement not to go to the family home offered by the Respondent provided further comfort.
The manner in which the case was presented by counsel before Her Honour Judge Robertson, in particular that the parties were able to reach some agreements, could provide her with good reason to find that matters had calmed down.
I turn now to the judge's reasoning. I bear in mind that this was an ex tempore judgment made in the course of a hearing listed, I think, for just one hour. It is inevitable that it is not going to be perfectly expressed and I make clear that I look at its substance rather than engage in a close analysis of the wording. I consider that I find the reasoning between paragraphs 14 and 20 of the judgment and I will read them into this judgment now.
What it seems to me is that when this order was made, it was made on the 24th in the immediate aftermath of a horrible incident. The parties have got very different interpretations of what happened but I think for both of them it was a pretty horrible incident. It was very highly emotionally charged, distressing, upsetting and it marked, I think, the final breakdown of their relationship. It was all quite catastrophic and cataclysmic. There were big emotions going on. Two days later I do not think anybody knew how it was going to settle.
I can see, with the benefit of a month having gone by, is that it has settled to an extent, settled with the father not trying to go back to the flat, not wanting to go back to the flat, accepting that he should not go back to the flat. He has found somewhere else to stay for the time being while it is all sorted out.
For a non-molestation order to be made I have to be satisfied of three things. One, that there is evidence of molestation. Clearly Judge Barry was satisfied of that on the basis of what she heard. She heard from the mother. That does not mean that it is proved. It just means that there was evidence of it and I do not disagree with Judge Barry's view about that.
Secondly, that there is need for protection. On 24 September the judge may well have been satisfied that there was need for protection, and the third one is that the protection needs to be provided by a judge.
The situation now is quite different it seems to me, that there was something that happened that was situational. It was to do with the breakdown of this relationship. The crisis that was in that moment. We are not there now. We are now in a situation where you are trying to calm everything down and rebuild everything. The circumstances where the father was not served with the order for two weeks but nevertheless did nothing that the order would have prevented, which shows me that he is not actually storming about the place trying to break down the door, get in, threaten the mother, remove the child or anything like that. That is not what he is doing.
He did not do it in the first two weeks and since then he has still not done it. It has settled even more. Really I am not satisfied that the order is necessary anymore. I do not dissent that it may have been necessary at the time. However, what is necessary is for him to agree that he will not go to the house without written permission of the mother. There might be an occasion somewhere down the line when he needs to retrieve some of his belongings or something and he needs to agree to do that when the mother is out with an agreed list of belongings or whatever. I am not dictating that. I am just saying that there might be an occasion at some point where he has to go there."
The judge's reasoning having been set out, I return to the grounds of appeal. In relation to the first ground, an unwarranted departure from the order of District Judge Barrie, I reject that ground. At the return date of a without notice hearing, the judge is required to consider submissions from both parties. It is entirely wrong to suggest that a without notice determination acts so as to require a judge on the return hearing to justify any variation from the without notice order. The hearing is de novo.
As to the second ground, it is right that the judge considered the incident of 22 September as situational, that is, relating to the separation of the parties and the breakdown of the relationship. I remind myself here of the two parties' C1As that were before the judge and the account that is recorded in the order of District Judge Barrie. I consider the guidance offered by the Court of Appeal at paragraph 52 of Re H-Nand othersPractice Note [2022] 1 WLR 2681 to which I have been referred. I will read out paragraph 52 into this judgment:
Professionals would now rightly regard as ‘old-fashioned’ the approach of the DVMPA 1976, where protective measures were only triggered in the event of violence or actual bodily harm. In like manner, the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being in the past and therefore of little or no relevance in terms of establishing a risk of future harm should we believe also be considered to be ‘old-fashioned’ and no longer acceptable. The fact that there may in the future be no longer any risk of assault because an injunction has been granted, or that the opportunity for intermarital or interpartnership rape may no longer arise does not mean that a pattern of coercive or controlling behaviour of that nature, adopted by one partner towards another where this is proved will not manifest itself in some other, albeit more subtle manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact on the welfare of the children and of the family.
I bear in mind that during the period between the incident and the hearing the father was subject to police bail and so had a particular reason to behave well even during the two weeks before he was served with the non-molestation order and indeed I have heard from counsel today that he was out of the country for at least half of the time.
I do not consider that the conduct of the parties during the directions hearing when instructing counsel can provide sufficient evidence to the judge such as to outweigh the potential risks in this case nor that an agreement not to attend the family home can of itself provide sufficient evidence to outweigh those risks.
Finally, I bear in mind that police bail which is relied on to provide further support is in the gift of the police and insofar as it is in the gift of the police it cannot be relied on as a reason not to make an order under the Family Law Act.
So I conclude that it was not open to the judge, without hearing evidence from the parties, to say that the risk was situational and had now passed. I recognise that what the judge was trying to do was to take the heat out of the situation. Laudable though that aim is, it is to manifestly over-credit hope against caution without the benefit of evidence. It is of a piece of the approach which was considered critically by the Court of Appeal in Re H-N.
In response to the third ground of appeal, future risk, I consider that this ground is made out given what I have said to the second ground.
As to the fourth ground, namely the acceptance of an agreement in lieu of an order. The argument is made with force given pursuant to section 46(3)(a) of the Family Law Act 1996, that the judge had to consider whether an order was necessary. Given her conclusion that the molestation was just about separation, she could say no order was necessary. However, where, as I do here, I consider that conclusion was wrong, I also consider that the fourth ground is made out.
I should add that Mr Wilson has made an application to admit fresh evidence, which was focused down in its final version to the two parties’ schedules of allegations as to findings sought in the Children Act proceedings. He wants to show me the full range of allegations that each are making against the other in order to demonstrate that the judge, by dismissing the non-molestation order without having had evidence, had failed to consider properly the risk to which the Appellant would be exposed.
Given the conclusions that I have already reached above, I reject as unnecessary the application to admit fresh evidence.
So I turn to the two tests that I need to consider.
Permission: by the Family Procedure Rules 30.3(7) I should give permission where I consider the appeal has a real prospect of success. I consider it does, so I give permission.
In relation to the appeal itself, by the Family Procedure Rules 30.12(3) I should allow an appeal where I consider the decision of the lower court wrong. I do consider the decision wrong. The judge characterised the risk of molestation as situational when she did not have the evidence to allow her to do so. The proper course would have been to call for each side to prepare a statement and to leave the without notice order in place pending the provision of that proper evidence.
In the light of the above, I will set aside the discharge of the non-molestation order.
Where does that leave this case? As originally drafted the order was to run to October 2026 but it is a without notice order. The Respondent must have a right to contest these allegations. I understand and I underline here that there are no findings against him and I have not by this judgment made any findings against him. In broad terms, it seems to me appropriate to limit the duration of the order now to the conclusion of the fact finding hearing in August. That is the time when, as I understand it the issues as domestic violence or molestation are to be considered in the context of the Children Act proceedings.
I am aware that there is a hearing between these parties tomorrow. I am happy to hear from the parties now whether I should endeavour to determine any further directions necessary to put the non-molestation part of the case together with the fact finding hearing or whether I should put that obligation on the local Family Court in relation to the directions that it gives tomorrow.
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