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

As I have set out, the mother relies on the following grounds set out in her amended Grounds of Appeal:

With respect to Ground 1, Ms Chokowry submits that in the context of the requirement for a judgment to articulate the legal test applicable and thereafter the process of evaluation and the reasons for the outcome, omitting to set out and consider PD12J was a grave omission, as was omitting to set out and consider the guidance given in in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 and K v K [2022] EWCA Civ 468.

With respect to Ground 2, Ms Chokowry further submits that omitting to make any reference to PD12J and the guidance given by the Court of Appeal in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) and K v K, led the judge to fail to analyse the allegations made by the mother in light of PD12J.

Had he applied the required approach, Ms Chokowry submits that the judge would have correctly assessed the character and extent of the allegations as being a course of longstanding coercive and controlling conduct by the father (including being emotionally and verbally abusive, 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 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 that context, had he adopted the correct approach, Ms Chokowry submits that the judge would have concluded that a finding of fact hearing was necessary in circumstances where the allegations made were serious in nature, were relevant to the question of contact, findings being necessary to allow an accurate assessment of future risk to CT and the impact of any abuse on her and the mother, and that the father’s admissions fell far short of being an acceptance of the circumstances as they were alleged to be by the mother and not representative of the serious harm alleged relevant to an accurate risk assessment.

With respect to Ground 3, Ms Chokowry points to a number of consequences that flowed from the judge not, as she submits, conducting a sufficient analysis of the evidence and/or giving undue weight to some of the evidence.

Ms Chokowry submits that had the judge applied the correct approach he would have avoided falling into the trap of treating older allegations as automatically irrelevant. In this regard, Ms Chokowry relies on the observations of the Court of Appeal in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) at [52] and [53]:

“[52] In like manner, the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being ‘in the past’, and therefore of little or no relevance in terms of establishing a risk of future harm, should, we believe, also be considered to be ‘old fashioned’ and no longer acceptable. The fact that there may in the future be no longer any risk of assault, because an injunction has been granted, or that the opportunity for inter-marital or inter-partnership rape may no longer arise, does not mean that a pattern of coercive or controlling behaviour of that nature, adopted by one partner towards another, where this is proved, will not manifest itself in some other, albeit more subtle, manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact upon the welfare of the children of the family.

[53]…Where however an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.”

Ms Chokowry makes an allied submission in contending that, in the context of having not considered the content of PD12J and the relevant decisions of the Court of Appeal, the judge erred by placing undue weight on the fact that the mother had allowed some contact between CT and the father post-separation. On behalf of the mother Ms Chokowry submits that the judge did not analyse this action in the context of the allegations of coercive control, the fact that relationship dynamics of an abusive relationship are invariably complex, the fact that the time the father spent with CT was in dispute between the parties and that during these periods the mother alleged several incidents of alleged verbal and physical abuse occurred.

Finally, Ms Chokowry points to the following additional consequences of the judge having, as she submits, omitted to analyse the allegations made by the mother in light of PD12J.

First, in failing to give any consideration to the longstanding pattern of behaviour, which included controlling the mother by making repeated accusations of infidelity, isolating her socially, not permitting her to disclose the fact of the relationship, controlling when and whether she could spend time with the father, being verbally and emotionally abusive towards her and undermining her as a mother, Ms Chokowry argues that the judge omitted to consider the wider context of the mother’s allegations and the need to determine the allegations of coercive and controlling behaviour. Second, the judge’s conclusion that there were no serious allegations postdating the birth of CT was, Ms Chokowry contends, demonstrably wrong on the evidence. Third, Ms Chokowry submits that had the court conducted an analysis of the admissions in the context of the allegations, it would have been apparent to the judge that the limited nature of the admissions did not address the father’s coercive control and serious verbal and physical abuse and do not provide a sufficient factual foundation for an accurate risk assessment as required by paragraph 37 of PD12J.

With respect to Ground 4, Ms Chokowry submits the anger management course completed by the father with ‘Anger Planet’ could not bear the weight placed on it by the judge as a factor negating the necessity for a finding of fact hearing on the grounds that there was sufficient information before the court. In support of that submission, Ms Chokowry cites that Cafcass Domestic Abuse Practice Guidance which states as follows in respect of anger management courses at p.44:

“FCAs are reminded that anger management courses are not an appropriate intervention for perpetrators of domestic abuse. Anger management supports individuals with regulating their emotions and behaviour. Domestic abuse and coercive control relate to power and control. Effective domestic abuse interventions focus on the perpetrator’s beliefs, values and accountability, and understands abusive behaviours as choices rather than losses of control. Anger management programmes will not address abusive and controlling behaviours and may increase risk by facilitating perpetrators to think of their abuse as something they have little or no control over, or as a response to the victim/survivor’s behaviour and hence the victim’s/survivor’s responsibility.”

Ms Chokowry submits that the foregoing principles are reflected in the case law, citing W (Children) [2012] EWCA Civ 528, in which Lady Justice Black (as she then was) held that a crucial part of a court’s consideration when ordering contact is the parent’s attitude to his past violent conduct and capacity to change and behave appropriately and the earlier decision of Re L (Contact: Domestic Violence) [2000] 4 All ER 609 in which Dame Butler Sloss stated that in cases of serious domestic violence, the ability of the offending parent to recognise his or her past conduct, to be aware of the need for change and to make genuine efforts to do so, will be likely to be an important consideration.

In this context, Ms Chokowry contends that the judge omitted to account for the following matters when placing significant weight on the ‘Anger Planet’ work:

Finally, with respect to Ground 5, Ms Chokowry submits that before making an order, in the context of admissions of abuse, the court did not have regard to PD12J, paras 35-37 and omitted to assess the impact on the mother of making an order in light of her known diagnosis of PTSD.

In responding to the appeal on behalf of the father, with respect to Ground 1 Ms Bennett relies on the decision of Lieven J in TRC v NS [2024] EWHC 80, in which the Lieven J stated as follows with respect to the process the court should undertake in deciding whether to direct a finding of fact hearing:

“[36] On the first point, it is clear from K v K, and indeed commonsense, that PD12J is not setting out a formal process that must be followed and evidenced in every case. To require a court to go through such a process would be highly onerous, and to a considerable degree a "tick-box" exercise. The duty on the court is to consider whether a fact find is necessary and proportionate, and to have regard to PD12J, including the matters in paragraph 5, and apply the relevant case law. The Appellant accepts that the Magistrates were advised both as to PD12J and K v K. Therefore the appeal cannot be based on them having failed to take the Guidance and law into account. This part of the Ground really comes down to a reasons challenge – did the Magistrates set out sufficient reasons to establish that they properly considered the issues?

[37] It needs to be remembered that these cases arise in necessarily busy lists and to impose a complex duty to give reasons would significantly impede the administration of justice. It is important that the Magistrates set out sufficient reasons as to explain, in short terms, why they reached the decision they did.

[38] In the present case, the Magistrates did this in the Recital set out above. They explained that in their view there was sufficient evidence before the Court, largely in the form of the transcripts of audio recordings and the witness statements, for the Cafcass Family Court Advisor ("FCA") to advise and for them to ultimately reach a decision on the children's welfare interests. In those circumstances it was neither necessary nor proportionate to have a separate fact finding hearing. In my view that is all they needed to explain.”

In this context, Ms Bennett relies on fact that the judge’s judgment records the seriousness of the mother’s allegations [paragraph 3]; the fact that “over a period of 20 years when together there are allegations of significant Domestic Abuse” [paragraph 3]; the admissions that the father had made [paragraph 4]; the fact that the mother would be considered vulnerable in relation to the father as a result of those admissions [paragraph 4]; that the father’s admissions and the mother’s vulnerability would need to be taken into account when assessing future risk [paragraph 4]; that the most serious allegations pre-dated CT’s birth and separation and that the father’s admissions covered the type of conduct that was alleged to have taken place post-separation [paragraph 5]; that there was post-separation contact between CT and her father [paragraph 5]; that the father had addressed his substance misuse [paragraph 6]; that the father had undertaken the Anger Planet course and that Mr Woolfson was “of no two minds that [the father] benefitted significantly from that course” [paragraph 6]; the delay that would be occasioned by a fact-finding hearing [paragraph 8]; and the particular impact of that delay on CT in circumstances where she had not seen her father since November 2023. Ms Bennett submits that, accordingly, the judge plainly gave adequate reasons for his conclusion that there was sufficient information before the court to assess how matters should progress without the necessity of a finding of fact hearing.

As to Ground 2, Ms Bennett reminds this court that both parties addressed PD12J and the leading Court of Appeal authorities in their respective Position Statements for the hearing on 14 February 2025. Although PD12J was not specifically addressed in his judgment, Ms Bennett relies on the fact that the judge did make specific reference to PD12J in his sealed order and recorded that the guidance contained within it was considered by the court in reaching its decision, as required by paragraph 18 of PD12J.

With respect to Ground 3, Ms Bennett argues that it is plain from the judge’s ex tempore judgment that the judge considered the broad canvass of evidence in determining whether to hold a fact-finding hearing. Ms Bennett points to the fact that the judge had considerable evidence before him at the hearing and that, on the basis of that evidence, it was plainly open to the judge to conclude that there was a sufficient factual matrix upon which the court could proceed in circumstances where (a) the father had made the admissions, on which the judge was entitled to rely, (b) the court accepted that the mother was vulnerable and that this needed to form part of the future risk assessment and (c) the court had made directions for the mother to adduce medical evidence in respect of the potential impact of contact on her and CT.

Ms Bennett further submits that whilst the judge acknowledged that the allegations made by the mother were serious, he was entitled to conclude that the seriousness of an allegation was not, in itself, a determining factor as to whether a fact-finding hearing is required, relying on the observations of the Court of Appeal in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) at [139] and the President’s Guidance Fact Finding Hearings and Domestic Abuse in Private Law Children Proceedings (5 May 2022). Whilst Ms Bennett acknowledges that the Court of Appeal in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) at [52] to [53] reiterated that behaviour “in the past” may well be relevant to future risk of harm to both parent and child in the context of allegations of patterns of controlling and coercive behaviour, she submits that the judge was entitled to take into account the historic nature of many of the allegations in circumstances where their relevance was diminished by the father’s post-separation contact, the undisputed work he had undertaken in respect of his drug/alcohol misuse and, in respect of the mother’s arguments about patterns of behaviour, the fact that the judge considered the father’s admissions as dealing with the type of behaviour alleged post-separation.

Relying on the decision of Cobb J (as he then was) in A v K (Appeal: Fact-Finding: PD12J) [2024] EWHC 1981 (Fam), Ms Bennett submits that the judge was required to decide in respect of the allegations what was, and was not, actually relevant to the precise welfare issues which required adjudication in respect of CT. Ms Bennett submits that the decisions of the Court of Appeal in Re H-N and K v K make clear that the court has a wide discretion in determining whether a fact-finding hearing is appropriate.

In this context, Ms Bennett contends the judge clearly considered the seriousness of the allegations, the historic nature of the more serious allegations, the presence of post-separation contact, the admissions made by the father and the reports obtained since the proceedings commenced. Ms Bennett further contends that, in taking into account the foregoing matters, the judge also directly engaged with the issue of risk of harm, explicitly acknowledging that the impact on the mother was a matter that the court would need to consider when making welfare determinations. In the circumstances, Ms Bennett submits on behalf of the father that the judge was plainly entitled to draw the conclusion he did based on the evidence before him to conclude, in the context of the wide discretion afforded to him in making his case management decision, that a fact-finding hearing on the disputed allegations was not necessary to inform an assessment of risk of harm when the court came to make welfare determinations.

With respect to Ground 4, Ms Bennett submits that the judge was entitled to take into account the report resulting from the father’s work with ‘Anger Planet’ as part of the broad canvass of evidence before the court. Ms Bennett points to the fact that in the present case, the father attempted to access 8 different DAPP provisions but was not able to do. Ms Bennett argues that the fact that the father was, through no fault of his own, not able to access a specific, tailored domestic abuse provision should not prevent the father from relying on other work he has proactively undertaken to demonstrate his progress.

Finally with respect to Ground 5, Ms Bennett submits that the judge adopted the proper course in ordering indirect interim contact. Ms Bennett contends that, having regard to his judgment, the judge had in mind not only the risk of harm to CT, but also the risk of harm to the mother arising from even supervised contact, as required by PD12J. Ms Bennett further relies on the fact that, as she submits, the order made incorporated the contact regime proposed by the mother. Ms Bennett submits that the judge cannot therefore be criticised for concluding that this level of contact was safe for both CT and her mother, and in accordance with CT’s welfare interests. Further, Ms Bennett submits that the order is carefully structured to ensure that the mother is not exposed to an unmanageable risk of harm, with 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 shows CT the videos, rather than the mother herself.