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

In setting out my reasons for allowing the appeal, I am satisfied that I can take Grounds 1 to 4 together.

I acknowledge immediately that Circuit judges have an extremely heavy workload and that the case management decision of whether to hold a fact finding hearing inevitably arises in a busy list. As such, to impose an obligation to give complex, extended reasons would not be appropriate. Whilst, in light of the matters identified below, it might have assisted the judge to refer briefly in his judgment to the requirements of PD12J and the process of reasoning set out in Re H-N, it is clear that both parties addressed PD12J and the leading cases in their respective Position Statements for the hearing. The sealed order makes clear that the court had regard to PD12J. In the circumstances, I am not satisfied that the judge can be said to have been wrong not to refer specifically to PD12J in his judgment as alleged in Ground 2. Against this however, the authorities set out above make clear that the court must give sufficient reasons to explain, in short terms, why it has reached its decision.

As articulated in Re F (Children) and Re B (Adequacy of Reasons), the crucial element of a judgment enabling the parties to understand why they have won or lost, and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable, is the evaluation and explanation provided by the judgment. I.e., the “why” of the judgment.

In the present context, the task of the court in deciding whether to order a separate finding of fact hearing was articulated by the Master of the Rolls in K v K as follows:

“[42] It is therefore important for the court, in every case where fact-finding is being considered, to take time to identify the welfare issues, to understand the nature of the allegations, and then to consider whether the facts alleged are relevant to those issues and whether it is, therefore, necessary for the factual dispute to be determined.”

In the foregoing context, in order for the parties to understand why they have won or lost on the case management issue in dispute in this case, and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable ,it should be apparent from the judgment that the judge has addressed, in short but sufficient detail, three questions:

Beyond the statement that the case concerns an application made by the father to have “contact” with CT, the judgment does not seek to identify the welfare issues in this case. In the sealed order, the issues are subdivided as whether the child should spend time with the father and, if so, how often, whether there should be overnight stays and longer stays, whether it should be supervised or supported and whether it should be limited to indirect contact.

In this case, all parties accepted that the CT and the mother experienced domestic abuse perpetrated by the father. Whilst the father admitted as much, the mother contended the abuse went much further than he admitted. As set out above, PD 12J paragraphs 35 to 37 articulate the principles that assist in identifying the welfare issues in cases in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse. Within this context, it is apparent that the welfare issues in this case encompassed:

In this context, the welfare issues in the case were in my judgement neither sufficiently identified nor sufficiently analysed in the judgment as an integral part of the overall task of deciding whether the matters alleged by the mother were relevant to the welfare issues such that it was necessary and proportionate to determine those allegations.

Likewise, beyond describing the facts in issue as “serious allegations she has raised against F in relation to physical abuse”, the judgment does not examine the nature of the disputed allegations. It was plain on the evidence before the judge that the mother’s allegations went well beyond “physical abuse”. In this context, there is no description or consideration of the other types of abuse alleged by the mother, which encompassed alleged coercive and controlling behaviour. I accept Ms Chokowry’s submission that had the judge sufficiently considered the nature of the disputed allegations he would have recognised that what was being alleged by the mother was a course of longstanding coercive and controlling conduct by the father and that that alleged conduct included repeatedly accusing the mother of infidelity, searching her phone and emails, restricting her from socialising, holding her in a van and threatening her with a hammer, pushing her against a wall and holding a bread knife to her throat, holding an upside-down chair against her throat, threatening to ‘put a knife through’ her and smash a work tool across her foot, being emotionally and verbally abusive and undermining the mother in her care of CT.

In the foregoing context, the allegations of domestic abuse and coercive and controlling behaviour were in my assessment likewise neither sufficiently identified nor analysed in the judgment as an integral part of the overall task of deciding whether the matters alleged by the mother were relevant to the welfare issues such that it was necessary and proportionate to determine those allegations. The impact of this omission was exacerbated by a number of additional matters.

First, the judge treated the father’s limited admissions as part of the “sufficient information” negating the need for a fact finding hearing. As set out above, in characterising other material that might negate the need for a finding of fact hearing, the Court of Appeal’s characterisation was not expressed in terms of “sufficient information” (the formulation used by the judge) but rather as “other evidence which provides a sufficient factual basis to proceed” (emphasis added). In the context of the judgment not identifying the key facts in dispute between the parties and the significance of that dispute, in concluding that the admissions of the father were sufficient to ground a risk assessment (and, erroneously, that the older allegations made by the mother were irrelevant and that there were no serious allegations postdating the birth of CT), the judge omitted to consider the wider context of the mother’s allegations and whether determining the much more wide ranging and serious allegations made by the mother (which the father did not admit, admitted only partially or asserted he could not remember) might establish a much greater longitudinal pattern of abusive and coercive and controlling behaviour that would necessarily impact on the assessment or risk. Had the judge undertaken that task, I am satisfied he would have concluded that the limited nature of the father’s admissions did not provide a sufficient factual foundation for an accurate risk assessment as required by para 37 of PD12J, i.e. they did not constitute other material providing a sufficient factual basis on which to proceed.

This difficulty was compounded by the fact that, as noted above, in respect of certain of the allegations the father does not simply deny those allegations but makes counter-allegations against the mother, with respect to the allegations of verbal abuse, he does not deny these but rather states that he cannot recall them and with respect to the allegations of physical abuse, whilst the father denies most of the allegations of physical abuse he makes a number of admissions with respect to the events surrounding the physical abuse alleged. In the circumstances, it is again difficult to see how the judge reached the conclusion that the father’s admissions provided a sufficient factual basis for the welfare evaluation.

Second, the judge’s reliance on the report from ‘Anger Planet’ as part of the “sufficient information” negating the need for a fact finding hearing was in my judgment misplaced. It is plain from his ex tempore judgment that the judge placed significant weight on the report from ‘Anger Planet’. The characterisation in the judgment that “F has taken a very adult attitude towards his past behaviour” (emphasis added) is the judge’s own assessment of Mr Woolfson’s conclusions. As set out above, the Cafcass Domestic Abuse Practice Guidance makes clear that the ‘Anger Planet’ report cannot be accorded the significance the judge attached to it. The report also raises a number of concerns regarding the extent to which the father acknowledges his past conduct, especially when viewed in the context of his claim not to recall a number of serious incidents of abuse. The following passage deflecting blame onto the perception of others is illustrative (emphasis added):

“I have learned that my actions and reactions at times could be perceived asabusive from my anger and the anger management course has given me the tools and mechanisms to use on my life journey for a peaceful and happy future going forward, not only for me but for others around me.”

In the foregoing circumstances, I must conclude that the judge did not give sufficient consideration to the identified welfare issues and to the nature and extent of the disputed allegations in the case sufficient to address properly the final question of whether the matters alleged were relevant to the welfare issues such that it was necessary and proportionate for the allegations to be determined. The absence of a firm foundation for answering the final question is demonstrated in a number of ways.

Whilst the judge states his conclusion that a finding of fact hearing is not necessary, there is no clear explanation of why the judge reached this conclusion, beyond his bare statement that there is what he describes as “sufficient information” to determine the welfare issues. I accept that the judgment mentions all of the matters prayed in aid by Ms Bennett, and summarised above. I likewise accept that, in line with the authorities set out above, that the court is not required to set out in extended detail its reasons for the case management decision it has made. In this case, however, beyond an incomplete recording in the sealed order, there is no explanation by the judge of why the court has concluded that “the court has sufficient information to assess any risk posed by Father to the child or mother on the basis that mother feels vulnerable in father’s” (sic). There are no reasons given for why the judge concluded, in the context of the significant factual dispute between the parties, a finding of fact was not needed in order to provide a factual basis for an accurate assessment of risk, to provide a factual basis for a welfare report and to provide a factual basis for assessment of the factors set out in paragraphs 36 and 37 of PD12J.

Further, when the conclusions in the judgment are read with the terms of the sealed order, a number of contradictions emerge. On the face of the order the court was satisfied that (a) the allegations of domestic abuse were likely to be relevant to any decision of the court relating to the welfare of the child having regard to PD 12J, (b) directed Cafcass provide a risk assessment based on the mother’s concerns about the father’s domestic abuse and (c) considered the mother’s diagnosis of PTSD to be forensically relevant to the issues before the court. However, the court also concluded in this context that a finding of fact hearing to determine the allegations of domestic abuse was unnecessary to decide the welfare issues in the case, to permit Cafcass to undertake a fully informed risk assessment and to determine the significance of otherwise of the mother’s mental health difficulties.

Finally, in circumstances where the judge refused the application for a finding of fact hearing but also directed Cafcass provide a s.7 report “dealing with – the mother’s concerns about the father’s domestic abuse”, the judge, in effect, left the question of the treatment of the remaining disputed facts to be grappled with by the FCA. This was obviously problematic. As set out above, if a fact requires to be proved the law operates a binary system. There is a thus an clear difficulty in tasking Cafcass to prepare a welfare report “dealing with” the mother’s allegations and assessing risk on the basis of those disputed allegations, rather than on the basis of findings of fact made by the court. The problem is demonstrated by any number of rhetorical questions that arise in the context of the judge’s conclusion that “the court has sufficient information to assess any risk posed by Father to the child or mother”. How is the FCA meant to deal with, for example, the allegations of serious physical abuse and threats to kill made by the father? Is the Cafcass Officer permitted to go beyond the father’s admissions or does he or she have to treat the mother’s allegations that fall outside the compass of the admissions as not having happened? If the former, is the FCA required to make his or her own findings? If so, is the FCA required to take the mother’s case at its highest and assess risk in that context or determine the individual allegations?

In the foregoing circumstances, I am satisfied that Grounds 1, 3 and 4 of the mother’s Grounds of Appeal are made out. For the reasons I have given, I am satisfied that Ms Chokowry has demonstrated that the judge did not give adequate reasons for dismissing the mother’s application for a finding of fact hearing, did not conduct an adequate analysis of the evidence and/or gave undue weight to some of the evidence and was wrong to place reliance on the course completed by the father with ‘Anger Planet’.

Finally, with respect to Ground 5, for the reasons I have set out above at paragraph [63], I am not satisfied that it can be established that the judge omitted to consider PD12J before making an order for indirect contact. Further, I am satisfied that the judge was entitled to rely on the fact that the indirect contact regime he endorsed had been proposed by the mother, it being reasonable to take from that that the contact was at a level and in a form that the mother could cope with. Finally, the order for interim contact contains significant safeguards in the context of the disputed allegations of domestic abuse and coercive control, with the order providing for indirect contact only and indirect contact that could be readily monitored and controlled, the father having been ordered to provide videos to a link shared with the mother’s solicitors and it being anticipated that a third party would show CT the videos, rather than the mother herself. In the circumstances, I am not satisfied that it can be said that the Judge was wrong to order the indirect contact in the interim that he did.

In the event that the court allowed the appeal, both parties invite the court to remake the decision as to whether a separate finding of fact hearing is necessary. I am satisfied that I have sufficient material to do so. I am also satisfied that a finding of fact hearing to determine the allegations made by the mother is necessary and proportionate in this case.

As I have set out above, having regard to the guidance set out in PD12J, the welfare issues that court is required to examine in this case can be identified as follows:

With respect to the nature of the allegations, of particular significance in this case is the current stark disparity between the level and nature of abuse admitted by the father and the level and nature of abuse and coercive and controlling behaviour alleged by the mother.

On the father’s admissions, as particularised earlier in this judgment, the domestic abuse perpetrated by him amounted to sporadic exposure to his significant drug and alcohol addiction, one occasion of searching the mother’s emails, two occasions of making unpleasant comments to the mother and one occasion of taking a picture of the mother due to concern about the manner in which she was holding CT. By stark contrast, and again as I have detailed above, the mother alleges a course of longstanding coercive and controlling conduct by the father spanning years, including being persistently emotionally and verbally abusive, repeatedly accusing the mother of infidelity, searching her phone and emails, restricting her from socialising, holding the mother against her will in a van and threatening her with a hammer, pushing her against a wall and holding a bread knife to her throat, holding an upside-down chair against the mother’s throat, threatening to ‘put a knife through’ her and smash a work tool across her foot and undermining the mother in her care of CT.

In this case, the chasm between the matters admitted by the father and the matters alleged by the mother serves to identify clearly the key facts in dispute between the parties and the significance of that dispute. In the context of the stark disparity between the nature and level of domestic abuse and coercive control admitted by the father and that alleged by the mother, the matters alleged by the mother are plainly relevant to the welfare issues I have identified.

Given the stark disparity, before the court is in a position to determine each of those welfare issues the court will need to establish on which of the mother’s or the father’s account of domestic abuse and coercive and controlling behaviour the required assessment of risk and the impact of the alleged abuse on CT is to undertaken. For example, only by determining which of the mother or father’s account of domestic abuse and coercive and controlling behaviour is the more likely to be true can the court place itself in a position to decide whether the father is a parent who has fully acknowledged his conduct, and recognises the impact of his behaviour moving forward, or is a parent who has very significantly minimised his abusive conduct and presents a risk of further domestic abuse and coercive and controlling behaviour in the context of that lack of acknowledgement and recognition. In this context, the specific factual allegations made by the mother are of probative relevance to the alleged pattern of coercive and controlling behaviour. The fact that some of the allegations made by the mother predate the birth of CT and extend over a significant period of time does not render those allegations irrelevant. Rather, the longitudinal nature of the alleged domestic abuse and coercive and controlling behaviour, if established by way of the fact finding process, will be highly relevant to the assessment of risk.

In the foregoing context, whilst delay will flow from the need to list a finding of fact hearing, I am satisfied that the impact on CT of that delay is outweighed by the need to establish a proper foundation for court’s decisions about CT’s future welfare.

As I have noted, whether undertaken as a separate fact finding hearing or as a fact finding exercise at a single hearing, the purpose of fact-finding in a case about children is foundational, i.e. to provide a sufficient factual foundation for the welfare decisions that fall to be made by reference to s.1 of the Children Act 1989. For the reasons I have set out, I am satisfied that the facts alleged by the mother, which stand in unusually stark contrast both in terms of nature and extent to the admissions made by the father, are relevant to the determination of the welfare issues I have identified and it is necessary for the factual dispute to be determined in this is a case prior to the required assessment of risk that will need to be undertaken as part of the court’s determination of the welfare issues in this case. I consider in these circumstances that it is necessary and proportionate to direct a separate finding of fact hearing, rather than facts being found and welfare decisions being made at a single hearing.