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

With respect to the question of adequacy of reasons in Ground 1, in Re F (Children) [2016] EWCA Civ 546, [2016] 3 FCR at 255 [22] Sir James Munby P stated:

“Like any judgment, the judgment of the Deputy Judge has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable 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. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228 para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist”.

In Re B (Adequacy of Reasons) [2022] EWCA Civ 407,| [2022] 4 WLR 42, Peter Jackson LJ set out a framework for evaluating the adequacy of judgments at [59] and [60]:

“[59] Judgments reflect the thinking of the individual judge and there is no room for dogma, but in my view a good judgment will in its own way, at some point and as concisely as possible:

(1)

state the background facts

(2)

identify the issue(s) that must be decided

(3)

articulate the legal test(s) that must be applied

(4)

note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned

(5)

record each party's core case on the issues

(6)

make findings of fact about any disputed matters that are significant for the decision

(7)

evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties

(8)

give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes.

[60] The last two processes – evaluation and explanation – are the critical elements of any judgment. As the culmination of a process of reasoning, they tend to come at the end, but they are the engine that drives the decision, and as such they need the most attention. A judgment that is weighed down with superfluous citation of authority or lengthy recitation of inessential evidence at the expense of this essential reasoning may well be flawed. At the same time, a judgment that does not fairly set out a party's case and give adequate reasons for rejecting it is bound to be vulnerable.”

In the specific context of decision as to whether or not to hold a finding of fact hearing, in H-D-H (Children) [2021] EWCA Civ 1192, [2021] 4 WLR 106 Lord Justice Peter Jackson noted at [23] that decisions whether to hold a fact-finding hearing:

“...are not always easy decisions and the factors typically do not all point the same way: most decisions will have their downsides. However, the court should be able to make its ruling quite concisely by referring to the main factors that bear on the individual case, and identifying where the balance falls and why. The reasoned case management choice of a judge who approaches the law correctly and takes all relevant factors into account will be upheld on appeal unless it has been shown that something has gone badly wrong with the balancing exercise”.

The law with respect to whether the court should direct a separate finding of fact hearing in a private law case, in which allegations are made of domestic abuse and coercive and controlling behaviour, has undergone some recent development.

The question of whether a separate fact finding exercise is necessary, or whether the fact finding exercise and the welfare evaluation can take place as part of one hearing falls to be decided by reference to the principles set out in the Court of Appeal’s decisions in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, [2022] 1 WLR 2681 and K v K [2022] EWCA Civ 468, [2022] 1 WLR 3713 and in the President’s Guidance Fact Finding Hearings and Domestic Abuse in Private Law Children Proceedings (5 May 2022).

Within this context, in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) the Court of Appeal set out the following principles that fall to be applied in determining whether a finding of fact hearing is necessary in cases involving allegations of domestic abuse:

FPR 2010 PD 12J articulates the following principles relevant to identifying the welfare issues, understanding the nature of the allegations and considering whether the facts alleged are relevant to those issues and whether it is, therefore, necessary for the factual dispute to be determined in any case 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:

“Factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic abuse has occurred

35.

When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child.

36.

(1)

In the light of-

(a)

any findings of fact,

(b)

admissions; or

(c)

domestic abuse having otherwise been established,

the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained.

(2)

In particular, the court should in every case consider any harm-

(a)

which the child as a victim of domestic abuse, and the parent with whom the child is living, has suffered as a consequence of that domestic abuse; and

(b)

which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made.

(3)

The court should make an order for contact only if it is satisfied-

(a)

that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact; and

(b)

that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.

37.

In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –

(a)

the effect of the domestic abuse on the child and on the arrangements for where the child is living;

(b)

the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;

(c)

whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;

(d)

the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and

(e)

the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.”

In Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) the Court of Appeal made the following directive statement at [56] with respect to cases of alleged coercive and controlling behaviour:

“It is the responsibility of the individual judge or bench of magistrates in each case to set a proportionate timetable and to maintain control of the court process where it has been determined that a fact-finding hearing is necessary. It is, however, our expectation that, in cases where an alleged pattern of coercive and/or controlling behaviour falls for determination, and the court has made that issue its primary focus, the need to determine a range of subsidiary date-specific factual allegations will cease to be necessary (unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour).”

Considering the foregoing passage in isolation, it is not immediately clear the extent to which the Court of Appeal acknowledged that a pattern of coercive and controlling behaviour will, by definition, be made up of a series of factual events, many of which may be in dispute between the parties, and that the seriousness or otherwise of the alleged coercive or controlling behaviour will depend, to a degree, on the extent to which the factual events comprising the alleged course of conduct are proved or not. However, and in this context, the Court of Appeal noted at [59] in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) that:

“Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of PD12J, para 16, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).”

The approach in the foregoing paragraph was reiterated in K v K at [68] to [70]. The applicable principle appears to be, therefore, that in cases where an alleged pattern of coercive and/or controlling behaviour falls for determination, and the court has made that issue its primary focus, the determination of subsidiary factual allegations (and hence, potentially, a separate finding of fact hearing) will not be necessary unless such factual allegations are of probative relevance to the alleged pattern of coercive and controlling behaviour. Again, in circumstances where a pattern of coercive and controlling behaviour will, by definition, be made up of a series of factual events, which may be in dispute between the parties, and that the seriousness or otherwise of the alleged coercive or controlling behaviour will depend on the factual events comprising the alleged course of behaviour are proved or not, it is possible to anticipate cases in which specific factual allegations are of potentially probative relevance and, hence, to anticipate cases of alleged coercive and controlling behaviour in which a finding of fact hearing is necessary.

Within this context, the concept of probative relevance is crucial. I.e. what facts in issue are relevant to the determination of welfare. This principle was emphasised by the Court of Appeal in K v K:

“[69] In re H-N at para 53 included the following sentence which may inadvertently have been misunderstood. It read:

‘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.’

[70] That sentence is a requirement to consider an overarching issue of coercive or controlling behaviour, where to do so is necessary for the determination of a dispute relating to a child’s welfare. It is not a requirement for the court to determine every single subsidiary factual allegation that may also be raised. The court only decides individual factual allegations where it is strictly necessary to do so in addition to determining the wider issue of coercive or controlling behaviour when that itself is necessary.”

Finally with respect to the approach set out in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings), it is important to note that 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 circumstances, in deciding the extent to which other available evidence might negate the need for a finding of fact hearing, the focus must be on whether that other evidence provides a sufficient factual basis for the welfare evaluation that the court is required to undertake, for example by way of facts not disputed by the parties, facts admitted by the party against whom a finding is sought or facts proven by other means, for example relevant convictions.