FA-2024-000359 - [2025] EWHC 857 (Fam)

The respondent’s case

On behalf of the respondent, Ms. Hylton submitted that the judge’s directions could not be regarded as wrong, on any view, and pointed out the high hurdle that an appellant must surmount in order to successfully challenge case management orders.

In her skeleton argument, Ms. Hylton set out the provisions of PD12 which requires the court to consider whether to order a fact finding hearing, and, in particular, the matters to take into account when making such a decision. She also made reference to the well known Court of Appeal authorities, and a more recent example of a case where the judge had adopted a pragmatic approach, pointing out there are cases where separate fact finds are neither necessary or helpful in a private law dispute. In that case as, Ms. Hylton says, in this, there is a strong overlap between ‘facts’ and ‘welfare’.

Ms. Hylton set out the history and background to the case with care including the difficulties that the family had encountered when they were living abroad, and also following their return. She submitted that the father had pleaded guilty to the offences for which he was charged at the earliest opportunity, and had taken many steps to try and address the mental health issues which lay behind the behaviour he had exhibited.

She took me through numerous parts of the father’s statement in which he had acknowledged behaving in a very abusive way to the mother, and extended heartfelt apologies to her for what had happened. Ms. Hylton stated that the judge quite properly took this into account. She said that differences between the accounts of the parties did not warrant investigation by fact finding, and could be considered by an expert ISW and the court without that. The father, for example, denied physical abuse of the children but he did accept some limited chastisement, and that was the very sort of issue that could be considered by the court without a factual determination.

In this case, it is submitted that the judge conducted a careful welfare analysis, applying the correct legal principles, stating clearly in his judgment that the court will only investigate what has happened in the past to the extent that it will make a difference to the outcome. He took into account the allegations and the father’s admissions. Ms. Hylton stated that the judge was specifically concerned with a separate fact finding hearing rather than a composite fact finding and welfare hearing, and had deliberately not said that he would shut the mother out from pursuing her allegations in the future. He had asked the ISW to set out a plan for contact and to watch the videos taken by the mother with a view to seeing ‘just what sort of case this is’ and to give advice to the court at the next hearing, which he listed for half a day.

Ms. Hylton also pointed out the wealth of evidence that the children had had a very good relationship with their father, that they engaged very fully in the video recorded contact that they had, sending messages of love to their father and telling him all about their activities. This was not a case where there had been no contact at all for months, albeit the contact was recorded rather than ‘live’.

Ms. Hylton also emphasised the father’s plea in the Crown Court, that a consultant psychiatrist had accepted it was likely he was suffering from PTSD at the time of the incidents, and that the judge in the Crown Court had accepted the father was genuinely remorseful. He had continued to engage in therapy and programmes to look at his behaviour and minimise risk. The probation reports were very positive. These were all factors that had properly been taken into account by the family judge, and should not be the subject of interference by this court.

In coming to his decision that there should be video contact between the children, the judge was properly taking into account how well the recorded video messages (by father and the children) had worked. Although this was not ‘live’ contact it was very interactive, with the children responding to the videos they had been sent, and vice-versa.