[2025] EWHC 945 (Fam)

Conclusions

In reaching my conclusions I have borne in mind the provisions of the Domestic Abuse Act 2021 (in particular s1 which defines domestic abuse and s3 which includes the child as falling within the definition of “victim” of domestic abuse), PD12J (particularly paras 25-27 and 35-37) and the welfare checklist contained in the Children Act 1989. I have reminded myself of the developing case law referred to in the skeleton arguments, including Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, in particular paras 31 and 32:

The circumstances encompassed by the definition of 'domestic abuse' in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see 'Scott Schedules' at paragraph 42 -50). It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour:

Is directed against, or witnessed by, the child;

Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;

Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;

Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.

It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be 'abuse' in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour. We would endorse the approach taken by Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (paragraph 61):

"Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to 'domestic abuse', where 'coercive behaviour' is defined as behaviour that is 'used to harm, punish, or frighten the victim…' and 'controlling behaviour' as behaviour 'designed to make a person subordinate…' In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict."

Domestic abuse is a vile, indefensible scourge in our society. The findings made by the court against F in 2021, albeit within Family Law Act proceedings rather than Children Act proceedings, are very grave indeed. M’s allegations of continuing abusive behaviour since then are cause for concern, and have to be seen in the light of the 2021 findings. The impact on M has yet to be fully established, but potentially severe. The impact on Amy, who has clearly witnessed conflict between her parents, may be damaging to a high degree. It is right to note also that F makes allegations against M which are, if proven, serious in terms of the impact on Amy. None of this should be underestimated. The question is whether these matters require the court to limit contact until they have been fully inquired into at the fact finding stage, and then at the welfare stage when the court will consider the risks to Amy.

My task relates solely to interim contact. The fact finding is for another day; so too the welfare hearing which will follow. The wider issues are not before me. The parties must understand that what I say in this judgment should not in any way bind or influence judges who come to this case later.

I acknowledge that this experienced Recorder was familiar with the case having conducted the Family Law Act hearing in 2021. It seems reasonable to me to assume that he had in mind the relevant provisions of the Domestic Abuse Act 2021 and PD12J. This was, it seems to me, a finely balanced decision. In the end, I conclude that his order maintaining overnight contact tipped to the wrong side of the balancing scales.

His judgment on the issue of whether to hold a fact finding hearing referred to the impact on a child of witnessing domestic abuse, as has been the case here: s3 of the Domestic Abuse Act 2021 resonates. At para 12, he referred to the allegation of F turning Amy against M which, if proven, could be “insidious”. At para 14 he said that M’s allegations “go to the root of the safety of the contact regime”. At para 15 he said that if M’s allegations are proven “then Amy is at risk” from F, and that if F is right then she is at risk from M. The risks either way are psychological and emotional rather than physical. Having identified the potential risks to Amy if the fact finding determines that M is correct, it seems to me that he did not fully follow through to consider whether in those circumstances interim staying contact could be safely managed. That is particularly so given the history of very serious findings made in 2021.

F makes the valid point that overnight contact was agreed by M in September 2024, but at that time no court had decided that a fact finding hearing should take place. Everything changed on 24 March 2025 when the judge decided that a fact finding hearing was necessary. The judge’s concern that Amy might not understand the reason for removing the overnight contact was a valid consideration, but had to be viewed in the context of a decision to direct a fact finding hearing. It seems to me that in the circumstances, contact needed to be reviewed on an interim basis. Had the judge decided not to hold a fact finding hearing, the position would have been different, but the decision to embark upon fact finding inevitably leads to a review of the appropriateness and safety of interim contact. In my judgment, the gravity of the allegations, and potential impact on Amy, was such that it was unsafe to continue with overnight contact. In my judgment, the Guardian’s recommendation at the hearing was the appropriate, balanced way forward. I conclude that the judge, who gave this case anxious consideration, ultimately was wrong and should have provided for more limited contact on an interim basis. I will allow the appeal, discharge the overnight staying contact and instead provide for unsupervised contact as follows:

After school on alternate Tuesdays until 6pm.

On alternate Saturdays from 9.15am-3.15pm.

Transparency

At the hearing before the judge on 24 March 2025 one member of the media attended. A transparency order was made on that occasion, which I will continue. At the hearing of the appeal, four media representatives attended including the person who had attended before Recorder Sharp KC. She applied for a variation to the transparency order so as to permit naming of the Father, and publication of his specific employment. I decided it would not be appropriate for any such variation to take place at this stage, save that the fact that he is a serving member of the Armed Forces may be reported, and in effect adjourned the application to be considered after conclusion of the fact finding hearing. I gave a short ex tempore judgment in which I set out the following main reasons for coming to this decision:

The parties had had very little notice of the application and did not have a meaningful opportunity to consider it and put forward their submissions. An application of this sort is likely to require careful thought.

Griffiths v Tickle [2021] EWCA Civ 1882 and Summers and Anor v White [2024] EWFC 182 were cited to me. In both those cases the Articles 8 and 10 balancing exercise was held to come down in favour of naming the perpetrator. However, those cases were after the fact finding exercise had concluded. In this case, the fact finding hearing is likely to be months away. It is true that findings in 2021 were made in Family Law Act proceedings, but in my judgment the entire picture needs to be established at the forthcoming hearing before the application is considered.

Part of the exercise involves consideration of the child’s Article 8 rights and, as part of that analysis, her best interests. The Guardian will not be in a position, on the child’s behalf, to undertake a full evaluation of what is in Amy’s interests, including as to publication of her father’s name and specific employment.