FA-2025-000045 - [2025] EWHC 2146 (Fam)

Having considered carefully the written and oral submissions in this appeal, I am satisfied that the appeal must be allowed. I am further satisfied that, having regard to the information available to this court, it is necessary and proportionate in this case for there to be a separate finding of fact hearing and I so direct. My reasons for so deciding are as follows.

As I have noted, during the course of her submissions, Ms Bennett placed reliance on the decision of Lieven J in TRC v NS as authority for the proposition that PD 12J does not set out a formal process that must be followed, as a highly onerous “tick-box” exercise, in every case in which the question of the necessity of a separate finding of fact hearing arises. Ms Bennett submitted that the judge’s judgment should be evaluated in that context.

As part of her submission that the court should not rely on the decision of TRC v NS, Ms Chokowry submitted that the approach adopted in TRC v NS to fact finding hearings in private law proceedings, particularly as articulated in paragraphs [45] to [47] of Lieven J’s judgment, is at odds with the decision of the House of Lords in Re B [2005] UKHL 35, [2005] 2 AC 645 and the decisions of the Court of Appeal in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) and K v K:

“[45] This case is a good example of why separate facts finds will often be neither necessary, nor indeed helpful in a private law dispute such as this. There is a very strong overlap here between the “facts” and the welfare analysis of what is in the children’s best interests. The holding of separate fact finding hearings, and the concept of findings of fact being “binary” emerged from public law cases. In public law cases under Part IV of the Children Act 1989, it will often be necessary to make findings of fact before threshold is crossed, see (inter alia) Re H (Minors) (Sexual Abuse) 1996 AC 563. Threshold must be crossed before intervention by the public authority is lawful.

[46] However, in private law there are no “threshold” findings and it may well be that issues of the factual matrix and welfare interests are closely bound up, and best considered together. The jurisdictional basis for private law orders are the considerations under s.1 of the Children Act 1989, and the welfare checklist. This encompasses matters of fact, but also welfare issues. It is both difficult, and often unhelpful to try to compartmentalise these matters.

[47] In many private law cases with allegations of domestic abuse, where the court is focusing on the relevance of such allegations to the best interests of the children, it is much less clear that separating fact finding from welfare is a helpful way to proceed. The welfare checklist focuses the court in considering the case in a holistic manner. The neat categorisation of truth and untruth and hard binary facts, often sits uneasily with the reality of failed relationships. It may be much more useful for a court to consider the evidence, including that of the FCA, in a holistic way rather than trying to separate facts from welfare.”

I am not bound by the decision of Lieven J in TRC v NS. With respect to Ms Bennett’s submission, the observations in TRC v NS relied on by Ms Bennett regarding the process to be adopted under PD 12J were obiter in circumstances where the issue on appeal in that case was whether the Magistrates had erred in vacating a fact finding hearing and not whether the approach the Magistrates had adopted with respect to the fact finding exercise itself was correct. In any event, the approach to PD12J in TRC v NS does not appear consistent with the decisions of the Court of Appeal in Re A (A child) [2015] EWCA Civ 486, [2016] 1 FLR 689 and Re H [2016] EWCA Civ 988, [2017] 2 FLR 527, by which I am bound (neither of which appear to have been cited to Lieven J). Both of those decisions of the Court of Appeal characterise the approach set out in PD12J as obligatory.

With respect to Ms Chokowry submission, and for what it is worth, in so far as Lieven J sought to suggest otherwise in TRC v NS,I agree that it is not helpful to seek to draw a distinction between the nature of the fact finding exercise in private law proceedings and that in public law proceedings. The burden of proof in all family proceedings lies on the party seeking to prove the fact asserted and the applicable standard of proof is the balance of probabilities. It follows from these principles that an asserted fact is either proved or it is not proved to the requisite standard by the person on whom the burden rests. The purpose of fact-finding in a case about children is foundational, i.e. to provide a sufficient factual basis for the welfare decisions that fall to be made by reference to s.1 of the Children Act 1989. Whilst in some cases a separate finding of fact hearing may be necessary, in very many cases the fact finding process and the welfare evaluation based on the facts found can be encompassed in a single hearing. However, in circumstances where the findings of fact made by the court provide the foundation of the welfare evaluation, to conflate fact finding and welfare evaluation in private law proceedings as elements of a broadly defined “holistic” process seems to me to risk introducing confusion by depriving the parties of the legal and procedural certainty inherent in the well established civil law approach of finding the facts, applying the relevant law to the facts found and, thereby, arriving at the case specific answer.

I am not able to accept respondent’s submission that the court should approach this appeal based on the decision in TRC v NS. For the avoidance of doubt, in determining this appeal I have applied the principles set out in PD12J, in the Court of Appeal’s decisions in Re A (A child) and Re H, Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) and K v K. As to the nature of findings of fact in family proceedings, I have borne in mind the decision of the House of Lords in Re B:

“Where a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one.”