[2025] EWHC 945 (Fam)

Mr Justice Peel :

These proceedings concern Amy (not her real name), a girl aged 8. I shall refer to her father as F and her mother as M. Today is the hearing of an appeal by M against an order by Recorder Sharp KC on 24 March 2025 whereby he determined that, notwithstanding his decision on that date to list a fact finding hearing in respect of allegations of domestic abuse by M against F, staying contact arrangements between Amy and F, which had been ordered by the court by agreement in September 2024, should in the interim stand undisturbed. Permission to Appeal was given by Harrison J on 3 April 2025 and listed urgently before me.

The background is that M and F met in 2003 when M was 15 and F 24. They had a sexual relationship before M reached 16, which plainly was unlawful. They started living together when M went to university, and married in 2012. Amy was born on 25 November 2016. Their marriage seems to have started to deteriorate in 2018 and M issued a divorce petition in October 2020.

On 5 January 2021, M applied under the FLA 1996 for a non-molestation and occupation order. On 27 May 2021 it came before Recorder Sharp KC. The judge found that Amy had suffered harm from witnessing the conflict between her parents, but not “significant harm” within the meaning of s33(7) of the Act. He made specific findings against F of:

Sexual assault in about 2005, when M became very drunk, passed out and F took a video of him touching her sexually.

An episode of anal rape in 2008.

F made a number of unkind or inappropriate comments to and about M which the judge considered were indicative of coercive control in a modest way, but to a much lesser degree in recent times.

In May 2020, F lost his temper while caring for Amy, and acted with excessive force to restrain her, but M was unsupportive and distant when he asked her for help. During this episode he punched a wall .

On 21 December 2020, M and F had an argument in front of Amy, for which the judge criticised both parents, after which M left the house with Amy and moved to her mother’s home in County A.

The judge concluded the parties could not live together harmoniously, that at times there was fault on both sides, and orders were required to protect Amy, including enabling her to return home. The judge decided to make a non-molestation order against each parent, and made an occupation order against F to leave the marital home so that M and Amy could return. I emphasise that these findings were not made within Children Act proceedings. They were for the purpose of the FLA application, and not for a PD12J analysis.

The background thereafter is not wholly clear, but some, relatively limited, contact took place between F and Amy, before F applied for increased contact in April 2023 which culminated in a final order on 5 September 2024 made largely by consent at which DJ Hay provided that:

Amy should live with M.

Amy should spend day contact with F, progressing to alternate weekend staying contact and holiday contact.

This was broadly in accordance with the Cafcass recommendation in a s7 report. M appeared in person. She says that she was “coerced” into agreeing to the order. I have no doubt that attending in person was challenging for her, but there is no material before me to suggest that she was forced to agree to the order, and I note that she did not appeal. Further, most of these matters were in fact agreed at a DRA in May 2024 when both M and F were legally represented, in particular progression to staying contact.

It is of note that those Children Act proceedings took place within a context of numerous allegations made by M against F. The court decided not to hold a fact finding hearing, given the findings in the FLA proceedings and the measure of agreement as to contact.

As I understand it, overnight contact took place on 27 December 2024 and then on a further six occasions until suspended by Harrison J when he granted Permission to Appeal. Day contact has continued as provided for by Harrison J.

On 12 December 2024, only 3 months after the final order, M applied by Form C100 to suspend the contact provisions.

In addition to the findings made by the judge in 2021, M says that:

F neglected Amy’s care and seeks to blame M for it.

He physically assaulted her during a handover on 26 August 2022.

He denigrates and humiliates her directly and in front of Amy.

He uses gaslighting against Amy.

He behaves in a coercive and controlling way.

Thus, in the round, M asserts a history of domestic abuse encompassing physical, sexual and emotional misconduct which has, on her case, taken place over many years within a coercive and controlling framework. She says that F presents a risk both to her and to Amy as victims of domestic abuse.

The majority of the assertions made by M relate to the period before the order of September 2024. However, M says that since then F’s behaviour has continued and worsened. She says she suffers PTSD as a result of the ongoing abuse. She says that Amy’s behaviour on returning from contact has been emotionally dysregulated, at times behaving unpleasantly towards her. She has been bed wetting and displaying angry outbursts. Amy is secretive and, on M’s case, F’s behaviour is being normalised in Amy’s eyes.

F denies the allegations and says M’s hostility towards him infects their relationship and her attitude towards contact. He says Amy is relaxed and happy in his care. He believes M is deliberately undermining his involvement in Amy’s life.

The application was listed urgently on 19 December 2024. DJ Hay gave directions and kept in place the contact arrangements save for minor amendments.

The application came before the judge on 24 March 2025. M and F were both represented. It was M’s case that there should be a fact finding hearing, and contact should be suspended. The Guardian supported a fact finding exercise, and suggested that interim contact should be reduced, but not suspended. I do not have a transcript of the two judgments given by the judge, one on the question of fact finding and the second on interim contact, but I do have the Guardian’s counsel’s Note of judgment, which gives a helpful overview of the judge’s thinking.

In the first ex tempore judgment, the judge decided to accede to the application for a fact finding hearing and made a number of appropriate case management directions. The judge cited the definition of domestic abuse within the Domestic Abuse Act 2021 and referred to the various relevant provisions of PD12J. He asked rhetorically whether a fact finding hearing was necessary and proportionate. He considered the relevance of domestic abuse and its potential impact on Amy. He took into account the view of the Guardian that a fact finding hearing was needed because the parents are so entrenched in their hostility to each other that, unless and until the issue of domestic abuse is addressed, it will resurface time and again. The judge concluded, “albeit with some hesitation” that a fact finding hearing was necessary to “lance the boil”. He said that the fact finding would be relevant to the assessment of risk to Amy from either or both parents. In my judgment, the judge was right to direct a fact finding which has infected the litigation for a number of years. The welfare evaluation needs the framework of clear findings as to the parties’ conduct, before considering the impact on risk and welfare.

The judge went on to decide that M would benefit from an intermediary assessment to assist her participation in the proceedings. It was M’s case that the abusive behaviour including anal rape and domestic abuse had generated mental health anxiety, PTSD and vulnerability. This is not a case of impaired cognitive capacity, but the judge determined that there was sufficient material to justify an intermediary assessment before determining whether M needs such support.

The next hearing will be a PTR in May 2025.

The judge then, in his second judgment, moved on to decide whether staying contact should continue as previously ordered. He does not appear to have referred directly to paras 25-27 of PD12 J although there is no reason to suppose that he did not have these in mind. They provide as follows:

Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind in particular the definition of “victim of domestic abuse” and the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse ).

In deciding any interim child arrangements question the court should–

take into account the matters set out in section 1(3) of the Children Act 1989 or section 1(4) of the Adoption and Children Act 2002 (‘the welfare check-list’), as appropriate; and

give particular consideration to the likely effect on the child, and on the care given to the child by the parent who has made the allegation of domestic abuse, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and that parent is likely to suffer as a consequence of making or declining to make an order.

Where the court is considering whether to make an order for interim contact, it should in addition consider –

the arrangements required to ensure, as far as possible, that any risk of harm to the child and the parent who is at any time caring for the child is minimised and that the safety of the child and the parties is secured; and in particular:

whether the contact should be supervised or supported, and if so, where and by whom; and

the availability of appropriate facilities for that purpose;

if direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact; and

whether contact will be beneficial for the child.”

The judge decided that the holiday contact should be suspended but the weekday contact, and alternate weekend staying contact, should continue. The judgment is brief, and perhaps less analytical than it might have been, but the essence is that: no concerns had been raised by [County B] Social Services in a report dated January 2025; Cafcass had in 2024 recommended overnight contact; the order in September 2024 was largely by consent; the allegations made by M largely predated the September 2024 order; Amy might struggle to understand why her time with F is being reduced.

In reaching this conclusion, the judge had before him the Guardian’s recommendation that conduct should be reduced to:

After school on alternate Tuesdays until 6pm.

Alternate Saturdays 9.15am-3pm,

in each case unsupervised.

M had initially sought a suspension of contact, or supervised contact, but ultimately agreed with the Guardian’s recommendation.

It can therefore be seen that the judge departed from the Guardian and M by providing for overnight staying contact in the interim.

M sought permission to appeal from the judge at the hearing. In refusing permission to appeal, the judge said this:

“Section 1(3) of the Children Act has been considered. I have considered change of circumstances and I’ve had regard to manageable risk of harm. I bear in mind; contact has been going on for some time and on a gradually increasing basis and that a number of agencies have looked into manageable risk and they conclude there is no unmanageable risk. A DJ has come to the Court with the conclusion that there wasn’t an unmanageable risk as otherwise she wouldn’t have come to the order.

The situation is very different in a case like this where there is an existing pattern to one where there isn’t. No, I refuse permission to appeal.”

It seems to me that the reference to “manageable risk of harm” is indicative of the judge’s awareness of s25-27 of PD12J.

At this appeal, M submitted that the judge was wrong to make an order for staying contact, and should have endorsed no more than the Guardian’s recommendation for day contact. She says that the judge failed sufficiently to balance in the equation the risk to Amy of continued contact despite having determined that there should be a fact finding. F says that this experienced judge reached a decision which was within the range of legitimate outcomes and the court should be slow to interfere with what is essentially an evaluation by the first instance tribunal. The Guardian said on this appeal she takes a neutral stance.