[2025] EWHC 1648 (Fam)

I begin by reminding myself about the limited functions of an appeal court in reviewing findings of fact made at first instance. The point made in Piglowski about the need to avoid undertaking a narrow textual analysis of a judgment has particular force in circumstances where I am considering an agreed note of judgment, from which some of the judge’s observations may well be missing, as opposed to a full transcript.

So far as the first issue raised by Dr Proudman is concerned (see para 72(a) above), it is accepted by all parties that the recitals to the order do not reflect the findings made by the judge. I agree. I have already set out above my own summary of the findings which the judge made.

I propose to allow the appeal on that basis and simply delete the recitals from the order. I do not consider it necessary to replace them with alternative recitals as it will be open to professionals considering this matter simply to read the judgment as well as this judgment.

I am unable to accede to the submission that the judge wrongly ‘minimised’ his findings against the father. I remind myself that the need for caution about interfering with a judgment below extends not only to a judge’s primary findings but also to his evaluation of those findings. The judge had the advantage of hearing the parents and other witness give oral evidence over several days and was uniquely placed to form an assessment about each of the parties and their evidence. I am not able to replicate his role. He made important findings about the credibility of the parents which he will have borne in mind as part of his overall assessment. It is not possible to say that the conclusions he reached were ‘rationally insupportable’.

I further consider that the findings against the father contained within the judgment (as opposed to the summary in the recitals to the order) were serious findings: any finding of abuse, in my judgement, is a serious matter. I do not accept that the judge, in his overall analysis, ‘minimised’ the father’s behaviour. In relation to the incident on 11 April 2015, he described the father’s behaviour as ‘appalling’ as well as labelling it as ‘abusive’. In my view, ‘appalling’ is a strong word and not a term which minimises what was found to have occurred on that occasion.

Standing back and looking at the findings, it is plain that the judge reached the conclusion that on repeated occasions the father had behaved towards the mother and others in a way that was highly inappropriate. Although some of the father’s behaviour fell short of attracting a finding of abuse, findings instead being made that he was ‘confrontational and oppositional’ or ‘stubborn and selfish’, the judge was clear that on other occasions he had indeed behaved abusively. He made specific findings against the father as ‘examples’ of his abusive behaviour. In my judgement, the fact that this abusive behaviour occurred against a background involving other inappropriate behaviour made it more serious. Although the judge did not use the expression ‘pattern of abuse’, based upon his findings it could not be said that this was a case involving one or two isolated incidents. The fact that some of his behaviour occurred in front of C was also, in my view, a serious matter, demonstrating as it did the father’s inability to restrain his behaviour in front of his daughter.

As I have already observed, the judge’s use of the word ‘limited’ when referring to his finding of controlling behaviour needs to be read in the context of his earlier rejection of the allegations that the father was responsible for sexually abusive behaviour which also amounted to coercive and controlling behaviour. I do not consider that in using the term, the judge was intending to reduce the seriousness of the findings he had made, merely to emphasise the fact that he had not made the more serious findings sought by the mother. As I have already observed, the judge had made it clear that his findings about specific incidents were ‘examples’ of the father’s abusive behaviour towards the mother and others. He did not state that his abusive behaviour had occurred only on those occasions and I do not consider that he use of the word ‘limited’ was intended to convey that either. This is illustrated by the fact that the judge said that his findings of controlling behaviour were limited to ‘those issues’ (my emphasis) as opposed to ‘those incidents’ he had identified in the judgment. His findings also need to be seen in the context of Recital 11 to his earlier order dated 19 October 2023 where he had made clear that his focus would be upon looking at ‘the overall picture’ as opposed to making findings in relation to every specific allegation.

Whilst it might have been preferable had the judge addressed specifically each of the allegations in the mother’s schedule, including her allegation 10, I cannot find that he was wrong not to do so. Indeed, at an earlier hearing he had already set out that this was the approach he intended to take. That decision had not been appealed. Allegation 10 entailed an assertion that when the mother was pregnant and asleep at 5am, the father had shouted ‘your stupid dog is about to walk on the carpet’. It is not possible for me to surmise what conclusion the judge may have reached about this, but I consider it highly unlikely that any specific findings he may have made would have caused him to alter his overall evaluation. As to allegation 12 (the stairgates incident), this was specifically addressed by the judge at paragraph 62 when he found that on this occasion the father’s behaviour was ‘stubborn and selfish’ but ‘not necessarily abusive’.

Having considered the submissions made by Ms Cawthray Stern in particular, I am unable to accept the arguments advanced on behalf of the mother about the text message referring to C having said that the father had said that the mother would die. Although there is no cross-appeal, it would appear that the judge may have misunderstood the evidence about this issue. I was told by Ms Cawthray Stern that the comment in question was made by the father in a text message in which he sought to explain a suggestion that C had told the mother that ‘daddy says you should die…’. Although the text message was inappropriate and arguably abusive, I find it difficult to see how it could be interpreted as an admission by the father to having made such a remark. The suggestion on behalf of the mother that the social worker had given evidence that such a remark had been made is also a mischaracterisation of her evidence. Ms Cawthray Stern explained that a question had been put to the social worker inviting her to comment upon the (incorrect) proposition that the father had ‘admitted’ telling C that the mother was going to die. Unsurprisingly, the social worker expressed the view that to have made such a remark would be ‘emotionally damaging’ to C. In the absence of a cross-appeal, I am not in a position to interfere with the judge’s finding about this message, but there is no basis for me to elevate the finding in the manner which the mother invites me to do.

As to the arguments about Dr Bailie’s evidence, it is well established that there is no need for a judge to make reference to each piece of evidence in a case. The judge heard oral evidence from Dr Bailie as well as reading his report. It was a matter for the judge to assess which aspects of the psychologist’s evidence he found most helpful. In my view, it is entirely apparent from the judgment how the judge placed reliance on this evidence in reaching his overall conclusions. He made explicit or implicit reference to Dr Bailie’s evidence at paragraphs 62, 65, 66, 68, 69 and 70 of his judgment. It is also clear from the Recorder’s earlier judgment in September 2022, that he had a good understanding of Dr Bailie’s evidence and its significance to the issues in the case.

It is clear that Dr Bailie’s evidence was a crucial part of the judge’s finding that the father lacks the ability to understand the effect which his behaviour has upon others, a character trait which has led to him causing upset and behaving abusively towards the mother and others. In my judgement, that is a finding whereby, contrary to the mother’s submissions, the judge addressed directly the father’s lack of insight. The mother is correct to say that the judge did not proceed to make findings about the risks posed by the father as a consequence of his lack of insight, but in my judgement issues of risk can more appropriately be addressed when the court comes to make welfare decisions. The father will have had time to reflect upon the judge’s findings and his reaction to those findings will form an important aspect of any evaluation of risk in this context.

I do not accept the submission that the judge failed to consider the definitions of domestic abuse in PD12J. Judges should be taken to be familiar with the relevant legal principles unless the contrary is demonstrated. This is especially the case, when the principles in question are as well-known as those found in PD12J. The judge had demonstrated a detailed understanding of the principles in his September 2022 judgment.

I do accept the point that the judge fell into error when, after delivering his judgment, he was asked to clarify the fact that the finding he had made was that the father had perpetrated controlling behaviour as opposed to coercive behaviour. In responding to this request for clarification, the judge agreed with the proposition and added that ‘there have been no threats’. Dr Proudman is right to point out that the existence of a threat is not necessary to establish an allegation of coercive behaviour in accordance with the PD12J definition. I bear in mind, however, that this comment was made in discussions after the judgment had been given.

The reason the judge had been asked for a clarification is that whereas at paragraphs 69 and 70 he had referred to the father’s ‘controlling’ behaviour, in his summary at paragraph 72 he said (as recorded in the note of judgment) ‘other than the limited findings of coercive behaviour, it is hoped that this matter will now rest on those facts being found and others not being found and there is a clear factual matrix’ (my emphasis). In using the word ‘coercive’ at paragraph 72, I think it is likely that the judge made a typographical error; the operative paragraphs in which he made findings were the earlier paragraphs which he was purporting to summarise. Accordingly, although the judge was mistaken to suggests that threats were required for a finding of coercive behaviour, I do not consider that this mistake affected the findings he made.

The further point made by Dr Proudman is that the judge was wrong to say that there had been ‘no threats’ and also wrong to find that there had been no coercive behaviour, whether or not any threats had been made. She points to a number of instances where she submits that the evidence clearly establishes that the father was threatening or where his behaviour was incontrovertibly coercive. The evidence upon which she relies in this respect is essentially contained within the various text messages sent by the father which were not addressed by the judge. I deal with these separately below.

Dr Proudman additionally draws attention to other evidence from which she submits the judge should have reached the conclusion that the father’s behaviour was threatening and/or abusive. In particular, she pointed to the source evidence from third party professionals in relation to which the judge had made certain findings. As I have already said, the third parties in question did not give evidence; in the case of PT the judge was critical about her failure to attend and made adverse comments about her evidence generally. In circumstances where the judge was having to rely upon hearsay evidence, it seems to me that he was entitled to be cautious in relation to the findings he made. As an appellate tribunal, I am required to be cautious before interfering with a judge’s evaluation and I do not consider I have a proper basis for doing so in relation to these matters. In circumstances where I have not heard the evidence I am not in a position to make findings, not made by the judge, that the father’s behaviour was coercive or threatening.

Ms Markham KC submits that allegations relating to third parties could not amount to domestic abuse as the third parties are not ‘connected persons’ for the purposes of the 2021 Act. Whilst there may be some validity to this argument, I do not accept that aggressive behaviour targeted towards a third party can never amount to domestic abuse against a person who is a connected person. It is possible to envisage circumstances in which a third party bears the immediate brunt of a perpetrator’s behaviour, but the behaviour has the effect of being coercive or controlling as regards the connected person. The point does, however, have force as to the need for particular caution when an appellate tribunal is asked to make additional findings on the basis of allegations of this nature.

I turn now to consider the voluminous text messages which did not feature in the judgment below. A significant part of the parties’ arguments concentrated on this aspect of the case.

I am unable to accept Ms Markham KC’s preliminary submission that it is not open to the mother to raise arguments before me about the messages on the basis that she was refused permission to appeal in relation to the messages. Ms Markham KC’s argument is based upon the fact that Williams J refused permission to appeal in relation to the mother’s Ground 4 (amongst other grounds) of her Grounds of Appeal. I was taken to version of the Grounds of Appeal in the court bundle. Ground 4, of the grounds as set out in that document, provides as follows:

“The judge failed to address or consider the evidence of F’s verbal abuse towards M in text messages and the father’s lack of insight into his abusive behaviour.

The judge did not adequately address the verbal abuse documented in SMS messages between M and F, which were provided in the supplementary bundle. These messages clearly demonstrate F’s abusive behaviour, but the judge failed to consider them in the judgment. Furthermore, F showed no insight into his abusive conduct, including denying that actions such as punching a man, calling M derogatory names, and abusing a health visitor were wrong. The judge’s failure to acknowledge this lack of reflection undermines the credibility of F’s testimony.”

Conversely, however, Ground 3 of the Grounds of Appeal (in the version within the court bundle) also makes extensive reference to the text messages; there is no suggestion by Ms Markham that the mother is unable to pursue this ground. Moreover, in giving his reasons for the grant of permission, Williams J said the following:

“The focus on the Scott Schedule appears also to have led to a degree of compartmentalisation and obscured the importance of considering the totality of behaviour including patterns of behaviour. The findings made about the fathers violent, threatening, and intimidating behaviour to M and others, including professionals, together with the evidence of Dr Baillie, the fathers admitted alcohol misuse and the contents of the messages in the Supplemental Bundle do not appear to have been considered in their totality and whether they potentially supported a finding of a pattern of threatening, emotionally or psychologically abusive behaviour.” (my emphasis)

In my view, that passage makes it plain that Williams J intended the ambit of the appeal to include consideration of the text messages.

Having reflected on the matter since the hearing, it occurs to me that a degree of confusion may have arisen as to the ambit of the appeal as a result of Dr Proudman having amended the grounds of appeal (helpfully I would add) so as to renumber them and list only those grounds in relation to which permission was granted. The Grounds of Appeal now contained in the bundle are thus not numbered in the same way as those which were considered by Williams J. I therefore strongly suspect that the fourth Ground considered by him was different from the one to which my attention was drawn. If I am wrong about this, however, my conclusion remains the same for the reasons set out above.

I have read the messages set out in the helpful schedule prepared by Dr Proudman. They do not comprise the totality of the messages upon which the mother relies. Some of them, it seems to me, are plainly borne of the father’s frustration at having to defend himself over a prolonged period of time in which he was being denied a proper relationship with his daughter. Contrary to Dr Proudman’s submissions, I do not, for example, consider that there is a proper basis for asserting that the father was being controlling in declining to go to mediation whilst a police investigation was ongoing. Nor do I consider there to be a basis for suggesting that the father was being emotionally and/or psychologically abusive in refusing to have contact at the maternal grandmother’s home on the basis that the previous two sessions had not gone well. He may have been misguided to adopt that stance, but that is a different matter.

On the other hand, there are other messages which fall into a different category. On their face, the best that can be said about some of them is that they are rude, insulting and disrespectful. I accept that a full consideration of the messages could have led the judge to conclude that a number of them were abusive. I also accept that, considered in their totality, including the fact that some were sent late at night, it would have been open to the judge to find that they amounted to a pattern of behaviour that could be described as coercive or controlling. It would similarly have been open to the judge, had the messages been fully considered, to reach the conclusion that they amounted to yet further ‘examples’ of the father’s abusive behaviour and his inability to understand the effect which his behaviour has upon others. When I initially considered the matter, I was troubled by the fact that the judgment omits mention of the messages and I formed the preliminary view that there might be merit in the arguments advanced by Dr Proudman that the appeal should be allowed on that basis.

I have now had the benefit of hearing submissions on this issue from Ms Markham KC and Ms Whelan and, in particular, from Ms Cawthray Stern (who, along with Ms Whelan, was present at the hearing). The reason the messages do not feature in the judgment has become plain. As I have recorded above, none of them were put to the father in cross-examination and they barely featured in the mother’s opening or closing written submissions. The only text messages about which specific findings were sought in the mother’s schedule of allegations were those sent on 7 December 2015 as to which the judge was told that the mother did not rely upon them as evidence of abuse.

In all of these circumstances, in my judgement the judge cannot be criticised for failing to deal in terms with the messages in his judgment. He had previously given permission for more than 2,000 pages of messages to be adduced in evidence in a supplemental bundle. But in a situation where he was not taken to the messages at the hearing, where they were not put to the father and where they were hardly addressed in the written documents, I am unable to uphold the mother’s contention that the judge was wrong not to make specific findings about them.

Although I can see the force in Dr Proudman’s argument that some of the messages are clearly abusive in nature, I am persuaded by Ms Markham KC’s submission that it would be wrong for me to attempt to make findings about them given my limited role as an appellate tribunal. I am also persuaded by Ms Markham KC’s argument that making findings against the father would be unfair when I have not heard the father’s evidence and when he has not previously been cross-examined about the messages. I further agree with the submission made by Ms Markham KC that any tribunal contemplating making findings would need to consider the context in which the messages were sent. She makes the point that the majority of the messages now relied upon by the mother were sent by the father in the most stressful of circumstances where he was under investigation for perpetrating serious sexual abuse against his daughter. I emphasise that I do not consider that being in a stressful situation can ever be a justification for domestic abuse. Nevertheless, to the extent that any messages were found to be abusive, the circumstances in which they were sent would be relevant to the assessment of any future risk posed by the perpetrator.

As I have recorded above, Ms Cawthray Stern submitted that, whatever view I took of the judge’s failure to deal with the messages, I should not remit the matter back for further consideration. To do so, she submitted, would be disproportionate given the welfare issues engaged by the case. She highlighted the length of time the fact-finding process has taken thus far and the fact that it has prevented any progress from being made in relation to a determination of the welfare issues for C. I am in complete agreement with this submission. The length of time over which the proceedings have been ongoing is extraordinary. In my view, this lengthy delay is likely to have been harmful to C. The severance of her relationship with her father for several years is likely to make its restoration more complicated. There is an urgent need to draw a line under the fact-finding process so that the court can begin to engage with the welfare issues involved.

Moreover, as I have highlighted above, in making his findings against the father, the judge stated that the incidents which he addressed were ‘examples’ of his abusive behaviour, not that they were the only instances of it. In all of the circumstances of this case, I consider that it would be disproportionate now to undertake further fact-finding, the outcome of which might well underscore this point but not result in any substantially different conclusions about the father’s personality and his capacity to behave inappropriately or abusively.

Although I have found that the judge was not at fault in failing to address the messages, I do regard it as unsatisfactory that they were not dealt with. The question of whether they were abusive remains unresolved and has the potential to be a festering sore. The solution, however, is not to hold a yet further fact-finding hearing, for the reasons I have given. Whether or not the sending of these messages falls within one or more of the categories of abuse identified in PD12J, there is little room for doubt that the content of a number of them was wholly inappropriate. While the father’s stressful circumstances may well be a substantial mitigating factor, I find it difficult to see how he can advance any proper justification for some of the messages in question. Any court making welfare decisions for C, is likely to want to consider whether the father understands that it is wrong for unwelcome messages of that nature to be sent. That issue can be investigated – proportionately I emphasise – as part of the welfare evaluation and does not require a separate fact-finding hearing.

In all of these circumstances, I have determined that the appeal should be allowed only to the extent that Recitals 3 and 4 should be removed from the court’s order. Any tribunal or professional tasked with evaluating C’s welfare should instead consider the judgment of the court below and this judgment.