FA-2025-000111 - [2025] EWHC 2756 (Fam)

The non-molestation injunction

It seems to me that M’s case is stronger on the judge’s decision not to extend the non-molestation order.

M relied on an allegation that F had breached the existing injunction in June 2024 by entering a prohibited zone. The judge was told that the CPS had decided to charge F in respect of the alleged breach. M’s counsel did not ask F about the allegation, relying instead on the fact that the CPS had decided to charge as being demonstrative of a risk. In the skeleton argument for this appeal, it is said that “M did not seek a finding that F breached the NMO by the judge, as she had no confidence in the fairness of the approach and was deeply troubled by the judge’s approach”. That does not seem to me to justify a failure to explore the alleged breach in evidence, particularly as multiple other matters were explored on M’s behalf. However, the fact that CPS decided to charge is, in my judgment, material, and the judge was wrong in seemingly ignoring that decision.

After the March 2025 Children Act proceedings concluded, a hearing took place on 28 May 2025 in the criminal court in respect of the alleged breach. F has pleaded not guilty and a trial is due to take place in February 2027. F is subject to bail conditions not to enter a zoned area where M and D live, nor to contact M directly or indirectly. Further, the police are investigating F for rape against M in respect of the events of 2015 to 2017 referred to above, and which Recorder Daley found proven, albeit to the civil standard.

The judge noted that M had alleged two breaches of the earlier injunction in April 2022, neither of which were found proven by Recorder Daley.

The judge ultimately concluded that (i) the previous alleged breaches in 2022 had not been proved, (ii) M had elected not to seek to establish the alleged breach in June 2024 by direct evidence (including cross examination of F), (iii) there was no evidence of other breaches, or of F attempting to contact M, and (iv) an extension of the injunction for any period (let alone the ten years sought by M) would not be proportionate. She assessed the risk to M of F attending her home to be “low”.

However, those factors in my judgment are outweighed by the following which militate in favour of an extension of the Family Law Act order:

The judge, in my judgment, was too restrictive in paying no regard to the fact that the decision has been made to prosecute F for breach of the injunction, even if that has not yet been proved.

The findings of fact made against F are very serious. These are not allegations; they are proved.

F has been charged with a breach, and is being investigated in respect of criminal rape charges. If the rape charges are pursued, the indications are that any trial might not come on for perhaps two to three years. I accept Dr Proudman’s submission that these matters may increase the risk of F attempting to contact M, and may also increase M’s fear that she may be subject to further contact by F.

The Cafcass Officer recommended an extension of the order. The judge departed from the recommendation but (unlike in respect of the surname) did not explain why.

In my judgment, a clear Family Law Act order would likely be beneficial in terms of providing both M, and by extension D, with an enhanced sense of security for a period of time now that the proceedings have ended.

Accordingly, permission to appeal should be allowed in respect of the non-molestation injunction. Going on, as I do, to consider the substantive appeal, I have come to the conclusion that the Family Law Act order should continue for 2 years i.e to 16 October 2027. I do not consider that 10 years, as sought by M, is appropriate, although a further application to extend can be made in due course, if justified.

Costs

There are two parts to this:

M’s costs of the Children Act proceedings until, and including, the hearing before the judge. She seeks £164,371.

M’s costs of the Family Law Act proceedings. She seeks £13,661.

In respect of the Children Act costs, M’s principal point is that M had little choice but to litigate given that F denied the allegations of domestic abuse. Ultimately she was successful on some of the most serious of her allegations, from which the decision on welfare flowed. So, submits M, F should make a significant contribution to her costs.

The judge, when dealing with the Children Act costs, stated at paragraph 143 of her judgment that she would deal with the costs of the fact finding proceedings before Recorder Daley, as well as the welfare proceedings before her. This was a practical course to take. As the judge observed, the order of Recorder Daley at the fact finding stage was silent as to costs, but in circumstances where the fact finding hearing was an integral part of the continuum of Children Act proceedings, it seems to me that costs were clearly at large: Timokhina v Timokhin [2019] EWCA Civ 1284 sets out the position at law clearly and in my judgment is on the point.

The judge summarised the general position as to costs in children cases, referring appropriately to the rules and a number of cases, including Re S (a Child) [2015] UKSC 20 and Re E [2025] EWCA Civ 183. She considered litigation conduct at paragraphs 67-70 of her judgment. She expressly found that F has not “used this litigation as a means to perpetrate ongoing domestic abuse”. She concluded that F’s litigation behaviour was not so unreasonable as to take it outside the usual parameters. She noted that the proven allegations of sexual abuse at the fact finding hearing occupied far less court time than the allegations of controlling and coercive behaviour on which M did not succeed. There were aspects of M’s case which she established, but aspects which she did not establish. The judge observed that at the welfare stage it was not unreasonable for F to challenge M’s position which would have resulted in the severing of his relationship with D.

In my judgment, these were all matters fully within the evaluative and discretionary exercise carried out by the first instance judge, applying the Re S principles faithfully. Unless the decision on costs falls outside the band of decisions reasonably open to the judge to reach, the appellate court will ordinarily not interfere with the decision below. In my judgment, there is no real prospect of success in respect of the Children Act costs and permission to appeal is refused.

In respect of the Family Law Act costs, I have overturned the judge’s decision not to extend the non molestation order.

It seems relevant to me that until the hearing before the judge, F had agreed to two orders being made and no findings of breaches had been made. At the first hearing, on 10 February 2022, no order for costs was made. At the next hearing, on 29 June 2023, costs were reserved.

By contrast to the first two hearings, at the hearing before the judge, F opposed any continuation. I have found that M is entitled to a further order, and it seems to me that F should be liable for at least some of M’s costs in respect of the second Family Law Act hearing and the hearing before the judge (no order for costs having been made at the first hearing). The sum sought is £13,661. Looking at matters in the round, I will order F to pay £5,000 towards M’s costs. Accordingly, I grant permission to appeal in respect of the Family Law Act costs, and go on to make an order for F to pay £5,000 towards M’s costs.