X (DOB 2017) & Anor (Children), Re [2025] EWFC 411 (B)

IMPORTANT NOTICE This written judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

[2025] EWFC 411 (B)

Case No ………….

IN THE FAMILY COURT SITTING IN ………….

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF X (DOB 2017) AND Y (DOB 2020) (CHILDREN)

ON APPEAL FROM THE FAMILY COURT SITTING IN …

Date DATE: 13 th October 2025

Before

HHJ Arthur

Between

MAppellant

APPELLANT MOTHERAppellant

FRespondent

RESPONDENT FATHERRespondent

M APPELLANT MOTHER AND F RESPONDENT FATHER

The Mother represented by Ms Miller of counsel (Instructed by Family First Solicitors)

The Father represented himself

Appeal Hearing on 15 th September 2025

Appealing the Case Management Decision at the Hearing: 1 2 June 2025

APPROVED JUDGMENT

Introduction:

[1]This case relates to two children [who I will refer to collectively as “Cs” within this judgment, for short, and ease of anonymisation if required later]: a) X, a boy, born in 2017 so now over 8 years old X has autism and ADHD b) Y, a girl, born in 2020 so now over 5 years.

[2]The Cs’ mother[who I will refer to as “M”], is the respondent to the main proceedings but the appellant in this appeal. She was represented by Ms Miller of counsel at this hearing, who did not represent her at any of the previous hearings including the one which is being appealed.

[3]Their father [who I will refer to as “F”]. He holds parental responsibility (“PR”) for both Cs as he is named on their birth certificates and was married to M at the relevant times. He is the applicant within the main proceedings but respondent to this appeal. He represented himself at this hearing but was represented by counsel at the previous hearings including the one being appealed. He opposes the appeal.

[4]I will refer to both parents collectively as “the Ps” – short for parents.

[5]M appeals DJ Mian’s case management decision on 12th June 2025 that a Fact-Finding Hearing was unnecessary, and the consequent decision to direct a section 7 report. She requires permission to appeal a decision of a District Judge, but to avoid further delay, I listed the matter for a rolled-up hearing to deal with both permission to appeal, and the subsequent appeal itself (if permission were granted), as the same arguments applied to both issues.

Background:

[6]The parties had an 11-year relationship, starting in 2013, marrying in 2017, and separating in February 2024, with F moving out of the family home in April 2024. They have been embroiled in an acrimonious separation due to M’s relationship with F’s sister’s ex-boyfriend, (who I will refer to as “B”). Since separation, the Cs have lived with M. There was an increase in acrimony in respect of B spending time in the family home with M and the Cs, as F regarded it as unfair that B had unfettered time with his Cs when he did not. Initially the Cs had contact with F, albeit not overnight. F sought to regularise the arrangement to alternate full weekends. When this was not agreed, he made an application for a Child Arrangements Order (“CAO”) on 27/1/2025 which commenced these proceedings.

[7]There was an incident on 29/3/2025 where M alleges that F assaulted X during his contact (M was not present, but she asserts that X told her about it afterwards). M called the police. The police arrested F at work and interviewed him and searched his mobile telephone for evidence of harassment of M. F was under police bail conditions during the investigation period which included that he was not to have any contact with the Cs, so contact was suspended. The police concluded the investigation by taking no further action, at which point the bail conditions were terminated. However, since the incident on 29/3/2025 F has had no direct contact with the Cs as M has opposed any contact other than indirect via cards and presents (and pre-recorded video messages which were agreed at the conclusion of this appeal hearing).

[8]At the first hearing on 16/4/2025, the Magistrates considered whether a fact-finding hearing was necessary (M arguing it was, and F arguing that it was not). There was some dispute at today’s hearing as to their conclusion. F said it was not determined. M’s counsel asserted that the Magistrates determined that a fact-finding hearing was necessary, and directed the Ps to file statements, but did not list the fact finding hearing because the time estimate could not be determined until the evidence had been filed. She pointed to the order making reference to: “The Court will hold a separate fact finding hearing…” however I noted that there was also a preamble to that same order that said: “The Court may hold a separate fact finding hearing…” [my underlining added]. The same order also set out that at the next hearing the Court would consider: “Case management directions in respect of a finding of fact hearing; Which allegations shall proceed to trial; Time estimate for any finding of fact hearing…” and the following order from the hearing of 20/5/2025 also set out that at the following hearing the Court would consider: “The father's application to re-visit the necessity of a finding of fact hearing” [my underlining added] – because the Court could not revisit a decision unless it had made it previously.

[9]At the second hearing on 20/5/2025, the Magistrates reallocated the case to District Judge level and listed the case before DJ Mian on 21/6/2025. At that hearing she determined that a fact finding hearing was not necessary, and directed Cafcass to write a section 7 report – the case management decision which is the subject of this appeal. In the meantime the s. 7 report continued, as if the appeal were unsuccessful it would be unfortunate for there to have been further delay in the proceedings. There was some delay in the matter being listed for the appeal hearing, partly due to delays in obtaining transcripts of DJ Mian’s hearing and judgment, and partly due to my own error, other work commitments and annual leave. This meant that the s. 7 report was actually completed in the interim, and the matter returned before DJ Mian for a further hearing on 9/9/2025. She recused herself on the basis that irrespective of the outcome of the appeal, justice would not be seen to be done if she remained the judge.

[10]As is usual for an appeal, I have not heard oral evidence from each parent, just submissions from each party, with made reference to the 500 pages of written evidence in the bundle. This included: applications, orders, statements from each party and witnesses on their behalf, the Cafcass safeguarding letter and s. 7 report, police disclosure, the appeal application/grounds and skeleton argument, and transcripts of the appealed hearing. There was some dispute as to whether M’s statement dated 5/6/2025 should be included in the bundle, as it was filed late, but there was reference in the transcript of the hearing on 12/6/2025 to DJ Mian giving her permission to file it out of time. DJ Mian specifically refused to give M permission to file a statement from her partner B, as this had never been directed. DJ Mian did not specifically address whether M could rely on the statement from her sister which was also filed late, but I dealt with that at today’s hearing, and as there was no objection to it being included in the bundle it is properly included. I also checked with parties whether there was any objection to me reading the s. 7 report and Ps’ statements in response – both Ps agreed that I should do so, and also consider the clarificatory questions which the Ps had agreed to send to Cafcass at the second hearing before DJ Mian on 9/9/2025.

[11]Today’s submissions were interactive, with the Court asking questions to clarify points, and allowing each side the right to reply to the other party’s submissions to ensure everyone said everything they wanted to before the Court deliberated. Due to the length and nature of submissions, there was insufficient time to deliver an oral judgment during the hearing, so I have provided this written judgment as soon as possible following the hearing, circulated in draft via email on 13th October 2025, with a formal handing down hearing listed remotely on 20th October 2025. This judgment is necessarily written in a linear format, but sets out the reasons for my decision which was made after considering all the evidence and submissions holistically. Although I cannot refer to every single piece of written evidence and oral submission in this judgment, I have considered everything I deem relevant. I will deal with the specific content of the evidence where relevant to my analysis below. I have determined only those matters which I consider necessary to my decisions about the Cs’ future.

Law:

[12]Permission is required for this application. To obtain permission to appeal, the appellant must persuade the Court that there is a real prospect of success in her appeal (with reference to the appeal test set out below) or some other compelling reason to hear the appeal.

[13]If permission is granted, pursuant to FPR 2010, 30.12 (3) the appeal court will allow an appeal where the decision of the lower court was – a) wrong; or b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

[14]The court may conclude a decision is wrong or procedurally unjust where: i. an error of law has been made; ii. a conclusion on the facts which was not open to the judge on the evidence has been reached: Royal Bank of Scotland v Carlyle

[2015] UKSC 13

, 2015 SC (UKSC) 93; iii. the judge has clearly failed to give due weight to some very significant matter, or has clearly given undue weight to some matter (B v B (Residence Orders: Reasons for Decision)

[1997] 2 FLR 602

; iv. a process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust (Re S-W (Care Proceedings: Case Management Hearing)

[2015] 2 FLR 136

); v. a discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible: G v G (Minors: Custody Appeal)

[1985] FLR 894

[15]I note that the wide ambit of discretion for the first instance judge means that appeals against case management decisions are particularly unlikely to succeed. In Re H-W (Care Proceedings: Further Fact-finding Hearing)

[2023] EWCA Civ 149

, Baker LJ helpfully extracted the relevant citations from the applicable authorities. At paragraph 34 he observed:

“This is an appeal against a case management decision. Judges in family cases are strongly encouraged to make robust case management decisions that ensure that the proceedings are conducted with a focus on the overriding objective. This Court will emphatically uphold case management decisions save in clearly defined and narrow circumstances. As Sir James Munby P observed in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250 (at para [35]): ‘… it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

[16]The hearing before me has been a review hearing. There are no circumstances in this case in which it would be in the interests of justice for me to hold a re-hearing - FPR 2010, rule 30.12(1). Accordingly, I have not heard any oral evidence, nor have I taken into account any evidence which was not before the lower court - FPR 30.12(2). However, I have reminded myself that an appeal court may draw an inference of fact which it considers is justified on the evidence before it - FPR 30.12(4)

[17]At the hearing of an appeal a party may not rely on a matter not contained in that party's appeal notice unless the appeal court gives permission - FPR 2010, rule 30(5).

[18]It is a fundamental principle, rooted in the common law concept of natural justice and reflected in the ECHR, that a legally valid decision can only spring from a fair hearing. If a hearing is unfair, a judgment cannot stand: Serafin v Malkiewicz

[2020] UKSC 23

at paragraph 49.

[19]The function of the appellate court is to determine whether the judgment below is sustainable. In Re F (Children)

[2016] EWCA Civ 546

, Munby P summarised the approach as follows:

"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."

[20]The task of this appellate Court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski

[1999] 1 WLR 1360

. I confine myself to one short passage (at page 1372) which concerns ex tempore judgments. It gives a flavour of the expectations held by the appellate Court in relation to judgments given in the Court below:

“These reasons should be read on the assumption that, unless he has demonstrated the contrary, the Judge knew how he should perform his functions and which matters he should take into account... An appellate Court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the Judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

[21]The appeal court has power under FPR 2010 rule 30.11(2) to – a) affirm, set aside or vary any order or judgment made or given by the lower court; b) refer any application or issue for determination by the lower court; c) order a new hearing. d) make orders for the payment of interest; e) make a costs order.

Domestic abuse:

[22]As M’s appeal relates to DJ Mian’s refusal to hold a fact finding hearing, I set out the law in respect of whether to hold a fact finding hearing in private law cases involving allegations of domestic abuse.

[23]PD12J of the Family Procedure Rules 2010 at paragraph 3 defines domestic abuse as including:

“…any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to psychological, physical, sexual, financial or emotional abuse.”

[24]Under the heading General Principles, at paragraph 4 of PD12J states that:

“Domesticabuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both parents.”

[25]By paragraph 5 of PD12J, the court must at all stages of proceedings, consider whether domestic abuse is raised as an issue. If it is then, amongst other matters, the court must: a) at the earliest opportunity, identify the factual and welfare issues involved; b) consider the nature of any allegation, admission or evidence of domestic abuse and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and if so in what terms; c) ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living and does not expose either of them to a risk of further harm; d) in particular, the court must be satisfied that any contact order with a perpetrator of domestic abuse does not expose the child in question and/or the other parent.

[26]Paragraph 7 of PD12J states that in proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.

[27]Paragraph 17 of PD12J requires the Court to consider the following when determining whether a fact finding hearing is necessary, and must set out reasons on the face of the order if it determines that a fact finding hearing is not necessary: a) the views of parties and Cafcass; b) whether any admissions provide a sufficient factual basis; c) whether the evidence provided to obtain legal aid provides a sufficient factual basis; d) whether there is other evidence available which provides a sufficient factual basis; e) whether the factors set out in paragraphs 36-7 (relating to what CAO would be appropriate, and the Ps’ behaviour and insight into the impact of their behaviour on the Cs and other P, and risk of further abuse) can be determined without a fact finding hearing; f) the nature of the evidence required to resolve the disputed allegations; g) whether the disputed allegations, if proved, would be relevant; and h) whether a separate fact finding hearing is necessary and proportionate.

[28]Paragraphs 16-20 of PD12J deal with directions for a fact finding. Paragraph 16 states that the court must determine as soon as possible whether it is necessary to conduct a fact finding hearing to provide a factual basis for any welfare report and/or assessment of risk. By reason of paragraph 19 of PD12J where at any hearing an admission of domestic abuse toward another person or the child is made by a party, the admission must be recorded in writing by the judge and set out as a Schedule to the relevant order. The court office must arrange for a copy of any order containing a record of admissions to be made available as soon as possible to any Cafcass officer or officer of CAFCASS Cymru or local authority officer preparing a report under section 7 of the Children Act 1989.

[29]The factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic abuse has occurred are set out in paraphs 35-37 of PD12J. They state that:

"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) domesticabuse having otherwise been established, d) the court should apply the individual matters in the welfare checklist with reference to the domesticabuse 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 domesticabuse by the other parent. 37 In every case where a finding or admission of domesticabuse is made, or where domesticabuse 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 domesticabuse on the child and on the arrangements for where the child is living; b. the effect of the domesticabuse 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 domesticabuse 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."

[30]Abusive behaviour may be physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, or psychological, emotional or other abuse, and it does not matter whether the behaviour consists of a single incident or a course of conduct [Paragraph 2A of PD 12J, in line with the definition in ss.1 and 2 of the Domestic Abuse Act 2021].

[31]The Court of Appeal in Re H-N

[2021] EWCA Civ 448

said that it was key to consider the relationship dynamic as a whole rather than looking at individual ‘incidents’ in isolation. A pattern of coercive and controlling behaviour may involve repeated or continuous, mundane forms of subordination, with relatively few, if any, incidents of physical violence, but may nonetheless be severely destructive of the autonomy and personhood of the party concerned, and indeed may be life-threatening, with consequent impacts on the children. “A pattern of abusive behaviour is as relevant to the child as to the adult victim.” It was stated that the court should be concerned with how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not come within the definition of rape, murder, manslaughter or other serious crimes. Behaviour which falls short of establishing rape, for example, may nevertheless be profoundly abusive and if so, should not be ignored in the family context. The question is: how much and in what ways were the children affected, and what is the risk of future harm?

[32]In F v M

[2021] EWFC 4

, Hayden J observed that the significance of individual acts may only be understood properly within the context of wider behaviour and an action which on the face of it may appear relatively innocuous can be, in the context of the parties’ relationship, “a brutal act of mental and emotional cruelty”.

[33]In Re Al M

[2019] EWHC 3415 (Fam)

, McFarlane LJ noted that “the purpose of the fact-finding exercise…is to identify such past events as may be relevant to the evaluation of future risk when determining the welfare arrangements for these…children”. The scope of fact-finding must be sufficient to enable the court to make an accurate assessment of future risk, but does not need to make findings on every single allegation where to do so would not be useful to the assessment of future risk. Specific facts and incidents should be selected for trial to the extent that, and only to the extent that, they enable the broader pattern of coercive and controlling behaviour to be established, and “only those allegations which are ‘necessary’ to support the above processes should be listed for determination”.

[34]I have also been taken to Henke J's decision inRe: O (Appeal; Duty to Consider Fact-Find)

[2024] EWHC 839 (Fam)

in which she said a paragraph 43-5:

“[the first instance judge] should have considered the issue of whether to make findings of fact in relation to coercive and controlling behaviours alleged by the Appellant and should not have relied upon any prior determination either in November 2022 or earlier by the Lay Bench. He should have kept the matter under continuous review. The issue of the determination of the allegations was clearly on the facts of this case a matter before him… Nowhere within the judgment did [he] consider the potential nexus between the allegations about behaviour in contact and past alleged behaviours of controlling and coercive behaviour. Nowhere in his judgment did he consider whether determining the allegations of past behaviour was relevant to the establishment of the facts or whether they established a pattern of behaviour relevant to welfare….he failed to consider whether the nature and extent of the allegations, if proved, would be relevant to any issue before the court - PD12J(17)(g) applied. Accordingly, I find that the learned Recorder was wrong not to consider whether or not a fact-find was necessary. However, I do not go so far as to say that he should have decided to have a fact-find.”

[35]PD12J requires that any contact must be safe and beneficial for the child. Complete refusals of direct contact and resultant orders for only very limited indirect contact lie at the very extremities of the court’s powers; there should almost always be some contact between child and parent (Re Q (Implacable Contact Dispute)

[2016] 2 FLR 287

). It will only be in a rare and exceptional case that the court should agree there should be no contact (Q v Q (Contact: Undertakings) (No 3)

[2017] 1 FLR 438

, FD and Re G (Children) (Intractable Dispute)

[2019] EWCA Civ 548

[36]The Court must always have in mind the overriding objective, which states that the Court should deal with a case justly, which includes, so far as is practicable:(a) Ensuring that the case is dealt with expeditiously and fairly.

(b) Dealing with the case in ways which are proportionate to the nature, importance, and complexities of the issues.

[37]Given M’s allegations of domestic abuse, she was automatically considered a “vulnerable person” within the definition of Rule 3A and Practice Direction 3AA of the Family Procedure Rules 2010, so I had to consider whether it was appropriate to make any participation directions. I allowed M to sit behind a screen in Court, at her request, and no other participation directions were requested or required.

[38]I have borne in mind all of the aforementioned legal principles in arriving at my decisions in this case.

M’s grounds of appeal:

[39]Turning now to M’s grounds of appeal, numbered according to M’s counsel’s appeal documents, but summarised by myself to try to separate out each strand of the appeal into a separate ground (as some overlapped):(1) The Court failed to apply PD12J properly by failing to consider whether the allegations, if proved, would be relevant to assessing risk regarding future contact arrangements; instead imposing a requirement to produce independent evidence that the Cs had suffered harm.

(2) The Court failed to consider the relevance of coercive and controlling behaviour.

(3) The Court consider irrelevant matters such as ongoing contact following alleged incidents, social services taking no further action, M calling the police, or failing to seek professional assistance.

(4) This is a catch-all paragraph.

[40]There is some overlap between the respective grounds and I treat them in totality when addressing this appeal. This court will not deal with all aspects of the appeal raised, but focus itself on those matters pertinent to allowing or refusing the appeal. I will not address the grounds in the order in which they are set out in the appeal document, but instead address them in the order I consider more logical

[41]M’s counsel raised 2 further issues at the appeal hearing: DJ Mian had not read M’s statement setting out the alleged abuse, and had addressed the question of the need for a fact finding afresh, not considering it from the point of view that the Magistrates had already said it was necessary, and there had been nothing in the interim to change that position. I permitted M’s counsel to rely on the 2 further issues raised at the appeal hearing not specifically referred to in the grounds of appeal, as they were addressed in the skeleton argument (so nobody was surprised or prejudiced by them being relied upon) and they were subsidiary parts of the listed grounds of appeal.

[42]Regarding the suggestion that the Magistrates had already determined that a fact-finding hearing was necessary, so DJ Mian should not have decided otherwise, without explaining what had changed since their decision: c) There is a question whether the Magistrates determined that a fact finding hearing was necessary, as different parts of the order were conflicting. - Even if they did, there is a question as to whether they were in a position to decide that, given that they did not have all of the relevant evidence at that stage. - Henke J’s decision in Re O makes clear that the Court is under a constant obligation to keep under review whether a fact finding hearing was necessary, so there would be no need for there to have been a specific change in circumstances justifying a change of decision – just that the updated evidence now tipped the balance into no longer warranting a fact finding hearing.

[43]However, the fact that the judge had not considered all the evidence (in particular M’s statement setting out her allegations) prior to reaching a determination regarding whether or not a fact finding hearing should be listed, is a fundamental flaw. The reason that a Court cannot determine whether a fact finding hearing is necessary until it has all of the relevant evidence is because it needs to consider the factors in paragraph 17 of PD12J, in particular whether there is other evidence or admissions which provides a sufficient factual basis (regarding the Ps’ behaviour and insight, and risk of further abuse) to proceed without a separate fact finding hearing. The reason why she had not read the statement prior to the hearing may have been understandable as it had been filed late, and she had not (at the start of the hearing) given permission for it to be filed out of time. The hearing proceeded on the misunderstanding by M’s counsel that the statement had been read and formed part of DJ Mian’s considerations, because it was in the bundle so he assumed it had been read. He only discovered it was not following DJ Mian’s judgment. At that point, she did give permission for it to be included within the evidence – rightly so as it had been delayed as a result of M’s solicitor being on leave, and no fault of M’s so M should not have been prejudiced by the error. As part of her ongoing duty to keep the need for a fact finding hearing under review, that statement should then have formed part of DJ Mian’s deliberations, and she should have reviewed her decision in light of reading M’s statement. She could not have done so as she had not read it (as she said, set out in the transcript of the hearing: “To expect anybody to read that [54 page statement], let alone me, is quite frankly extraordinary.”).

[44]The failure to consider the relevant evidence before determining the issue of whether a fact finding hearing was necessary is a sufficient basis for the appeal to succeed, without considering the other grounds. However, I will say that ground (1) covers two separate issues: the relevance of the findings to the Court’s welfare decisions, and the type of evidence available to prove the allegations. This ground is largely based on the transcript of the hearing rather than the judgment, where DJ Mian correctly summarised the legal test she was to apply:

“I have to look to see whether a finding of fact is necessary and whether it is proportionate and I have to look to see whether the findings are relevant and likely to impact the welfare of the children to the point that we should not take a further step unless those findings are made to allow assessment of risk and impact on the child.”

However, there were a number of comments within the hearing as a whole which suggested that DJ Mian placed undue weight on the need for direct harm to the children and/or there to be evidence from independent and/or professional third parties.

[45]For the avoidance of doubt, there is no requirement that the Cs have themselves suffered direct harm as a result of the domestic abuse. The definition of harm in paragraph 3 of PD12J specifically refers to:

“suffering harm as a result of seeing or hearing the ill-treatment of another.”

In any event, the relevance of any findings is whether there is a risk to the Cs in future, rather than what they may or may not have seen and heard in the past. This can include transferrable risk (e.g. if, as M alleges, F struggles to manage his anger, which has in the past manifested itself by aggression against M, there is a risk that he may express aggression towards the Cs in future if M is not present). Alleged harm to another person (such as the other parent) may be entirely sufficient to justify the need for a fact finding hearing where it is so serious that it may suggest a transferrable risk, or impact on the complainant’s ability to manage handover arrangements or care for the Cs. In any event, there were allegations of direct harm to Cs, namely the 2 alleged assaults on S in September 2024 and March 2025.

[46]There is also no requirement that any evidence is from third parties or professionals in order for it to be reliable. Of course, the evidence of the Ps embroiled in the dispute may be biased, so may not be as accurate as an independent professional, but it is still evidence that should be taken into account. It is a question of what weight it should be given, which may only be possible to ascertain once all of the evidence has been considered and tested through cross-examination at a fact finding hearing. It is also not necessary for the Court to have a professional recommendation that a fact finding hearing is necessary, as the professional opinion is just guidance. It is of note that the telephone interviews for the Cafcass safeguarding report, on which DJ Mian relied for not recommending a fact finding hearing, pre-dated the final allegation of assault on S which led to contact stopping.

[47]Therefore I accept the concerns raised regarding the comments of DJ Mian such as: - “No, give me the evidence that is not your client’s version of events.” - “I am looking at the impact on the children. I am looking, for example, for a report from Early Help that tells me that these children are distraught, damaged and so on; I am looking for reports from schools that tell me this is a child who sits in the corner, for example, and is frightened of everything; I am looking for evidence that supports that whatever happened between these two adults has impacted these children. There is no such evidence that is going to prevent contact.’” - “…the findings that this Cafcass officer concludes are that there is certainly no need for a fact find hearing because the children do not manifest welfare issues that require such a fact find” - “I am not interested in [the issue of sexual coercion], why would that concern this court what two adults did or did not do with each other?”

[48]However, these comments do not meet the level of appeal as DJ Mian correctly identified and applied the legal test in her judgment, and did not refer to these matters as affecting her decision. So ground (1) is not made out. I do not accept the concerns raised regarding DJ Mian’s comment about X’s autism either (“Oh I know he is autistic and all the rest of it”). Although the comment may have appeared flippant or insufficiently respectful regarding the condition, my reading of it is that she was expressing her frustration at any suggestion that she had not taken into account his condition when she was well aware of it and had done so. It is unreasonable to expect perfect phraseology whilst dealing with a busy Court list.

[49]Regarding appeal ground (2): From the transcript of the hearing, it appears that DJ Mian placed limited weight on the significance of potentially coercive and controlling behaviour which is not in line with the case-law recognising the importance of this form of abuse. DJ Mian made no mention in her judgment of F’s abusive text messages and whether these may or may not support the allegations of coercive and controlling behaviour. There was also no analysis of how the impact on M (of any domestic abuse, and of then having to facilitate contact) may have a knock-on impact on the Cs in her primary care. This ground also overlaps with ground(1) in that covers the concept of transferable risk (will F display controlling behaviour to the Cs during contact instead of M?) and also whether there is a risk to M from contact arrangements (will F attempt to control M through the contact arrangements?). Ground

(2) is therefore made out.

[50]Regarding ground (3): the court can take into account whether there was contact following the alleged abuse, and whether professional support was sought and if so what the opinion of those professionals was regarding the seriousness of any risk. None of these matters is determinative on the outcome of the decision as to whether a fact finding hearing is required. There may be a need for a fact finding hearing even where contact has taken place following the alleged incidents because sometimes the disputed behaviour is cumulative over a long time, and sometimes it takes time for a victim of domestic abuse to realise the true nature of the behaviour. Many victims of domestic abuse are not aware of it being abusive until after they have extricated themselves from the relationship, so are not necessarily the best judges of whether contact should continue. So just because there is contact after alleged abuse, does not mean there should have been.

[51]Therefore, DJ Mian’s comments in her judgment are inaccurate that:

“The principle of contact is not opposed, it clearly is not opposed and I do not accept that is because of coercive control as it has not been so opposed for some time. The principleof contact has not been opposed, contact is likely to take place even if, the assertions andallegations made by the mother were proven, they do not go to welfare because of the reasonsI have already given and there is absolutely no need for a finding of fact hearing to be held.”

This suggests that she considered there was no need for a fact finding hearing where there had been ongoing contact following the allegations, which is not automatic.

[52]Similarly, she placed undue weight on the professionals’ views regarding the appropriateness of ongoing contact. Victims of abuse do not always seek professional support appropriately. When they do, they may not provide professionals with full information. Professional assessment is only as good as the completeness of the information on which it is based. So just because a professional has said there is no issue with contact continuing after alleged abuse, does not mean that it should have continued, if the professional did not have full information regarding the alleged abuse. As noted above, the Cafcass Officer who filed the safeguarding report was not aware (when she did not recommend a fact finding hearing) of the final allegation of assault on X which led to contact stopping, and which was the primary example of an allegation of direct harm to (one of) the Cs – a factor which DJ Mian appeared to consider particularly important.

[53]DJ Mian made no mention of F’s admissions regarding physical chastisement (e.g. to cafcass in his safeguarding interview: “If X is out of line, he gets a clip to the head, on the bum or to his legs.” – which F confirmed during his police interview and during this appeal hearing), neither as a factor leading to the need for a fact finding as it was evidence that M’s account of F assaulting X was more likely to be true, nor as a factor leading to there being no need for a fact finding as there was an admission of physical chastisement which was sufficient factual basis to proceed.

[54]I therefore allow the appeal on grounds 2 and 3 plus not having read M’s statement. There is no need to consider ground (4) separately as it is a catch-all. I set aside the decision that a fact finding hearing is not necessary in this case. That does not mean that a fact finding hearing is necessary in this case. It means that that decision must now be considered afresh, on the basis of all of the information available to the Court. I could remit that issue back down to another District Judge for determination. However, as I had all of the relevant information and submissions before me during the appeal hearing, and all parties agreed that it would be more sensible for this Court to retain case management, I will proceed to determine that issue now.

Next steps:

[55]In order to determine whether a fact finding hearing is necessary, the Court must first identify the factual and welfare issues involved, considering the nature of any allegation, admission or evidence of domestic abuse and the extent to which it would be likely to be relevant in deciding whether to make a child arrangement order and if so in what terms. There is no formal schedule of the allegations which M seeks to prove, nor a response as to what F admits or disputes. However, from the papers, the primary allegations appear to be as follows:(a) 12/9/2023 F assaulted X by slamming his hands on the table near X, grabbing/dragging him outside and shutting the front door, in response to X pointing a knife at F, leading to an argument between the Ps as to how each handled S’s behaviour.

(b) 7/9/2024 F assaulted X by banging his face into a metal banister in a park causing a bruise.

(d) F threw the Cs onto the sofa/cushions.

(e) F shouting at and verbally abusing M during the marriage, and since separation, in particular on 25/12/2024, 1/3/2025, and via text messages.

(f) F threatening to assault, and verbally abusing M’s partner, and making inappropriate comments about him to the Cs.

(g) Making inappropriate comments about the problems with contact to/in front of the Cs.

(h) Controlling/coercive behaviour towards M during the marriage, and since separation, including installing CCTV cameras in the home and refusing to allow M to take control of the app/reconnecting them after separation, and by showing explicit messages between M and her partner to M’s family.

(i) Sexual abuse by forced sexual activity.

(j) Financial abuse by overspending during the marriage leading to debt, and by cutting off payment for TV, internet, Spotify and subscriptions for the Cs (e.g. Netflix) since separation.

[56]Of those allegations, some are partially admitted by F:(a) F did not directly address in his written evidence whether he grabbed/dragged X outside shutting the door during the incident on 12/9/2023, although he accepted there was an incident as he explained the circumstances was that he was overworked; he denied losing control and swearing at X but he has accepted subsequently that he did lose his temper with X on occasions.

(b) F accepts that on 7/9/2024 X’s face was bruised from banging into a metal banister in a park causing a bruise, but said it was caused accidentally whilst he was trying to chase after Y whilst holding X’s hand, and X resisted. At best this demonstrates F struggling to parent both Cs simultaneously in a way that kept both safe, leading to X suffering a painful injury. At worst, F was reckless as to X being injured, as there is no evidence that F intentionally assaulted X.

(c) F accepts that on 26/3/2025 S threw shoes at F, and F held him down on the bed, but says it was to stop him falling off the bed and hurting himself, and denies assaulted/punching X. He does admit physically chastising X on other occasions, and to losing his temper, so the dispute is whether his physical chastisement is always reasonable. F said during this appeal hearing:

“I’ve admitted X gets clip on the head or leg, I won’t deny that. He can be quite violent especially to his sister. M and her mother have often stopped me from chastising X for hitting Y…maybe my actions were not as required. I’m willing to change, and do whatever to substantiate a better parenting model.”

F also texted M on 7/8/2024 following a different incident that:

“I didn’t kick X, he kicked me and I kicked out after working 7 days straight and not wanting to be there in the first place. You want to cite these instances as evidence of abuse whilst holding no context or consideration to it.”

At best this appears to be an admission that he kicked out at X because he lost his temper due to X’s behaviour and his own exhaustion, and is another separate example of concerning parenting and interaction between F and X which increases the concern in respect of the incident on 26/3/2025. (d) F accepts that he used to throw the Cs onto the sofa/cushions but as a game, not to hurt them, so this would not be an admission that would affect contact arrangements. (e) F accepts sending abusive texts (e.g. “Well perhaps if you’d acted like a normal person or just not a slut, then you wouldn’t be here…Fuck off.” “You complete tool! All this is to accommodate you and your fucking needs! You create a fucking nightmare situation and fuck everyone’s world into orbit and you say this is “My convenience” Take your head out of your ass you self indulgent idiot. You create a catastrophe to indulge your fucking needs and everyone else should bend over backwards to meet your demands. You are a cretin!” “Pampered little fucking princess…Slytherin all the fucking way…It’s the reason your family think you’re a prick!”) since the separation, but explains that he was upset by M’s alleged affair and feeling replaced by her new partner in the home. He denies shouting at and verbally abusing M during the marriage, but accepts there were arguments, including on 25/12/2024 and 1/3/2025, but denies being abusive. (f) F accepts speaking in a derogatory way to M’s partner, but stops short of admitting to threatening to assault him. His feelings about M’s partner are clear from text messages and what he said in this appeal hearing:

“I’m not going to deny I wasn’t upset about B being around my Cs constantly when I wasn’t allowed, when he was replacing me in the father-role of bedtime stories and bikes. I was repeatedly angry and frustrated, asking her to be reasonable about the Cs…The fallout from the divorce would make anyone angry. Anyone who had Cs, who found a new person being substituted into their family role, and asked to accept it without discussion, just told “it’s happening”, anyone would have contention with that issue. My messages, I’m ashamed of them, but you have to examine what happened between me and my ex. You can’t say that because me and M were angry with each other through the divorce, that doesn’t make me a bad father.”

It would be astonishing if such firm views had never been expressed to or in front of the Cs. (g) Likewise it would be astonishing if F’s firm views regarding the unfairness of his contact arrangements had never been expressed to or in front of the Cs. (h) F denies controlling/coercive behaviour, saying CCTV cameras were installed in the home for M’s and the Cs’ safety, but there is a text message showing that he refused to allow M to take control of them after separation unless she agreed to her partner not entering the home:

“Let me clarify again. I do not give a flying fuck what you do. Where you go or who you see. The only thing I have said is I do not want that prick in my house. I am responsible for those Cs as well as you are. You had no issue me watching the house before. I’ll make you a deal. Promise the cunt won’t come in the house and I will give you all access to the ring cameras. Other than that, no!” which is an unreasonable requirement and an attempt to control M’s behaviour. F also admits showing explicit messages between M and her partner to M’s family, which he must have known would be humiliating for her. (i) F denies any nonconsensual sexual activity. (j) F accepts overspending during the marriage leading to debt, but said it was for the family not himself. He accepts cutting off payments for things since separation (confirmed by text messages) because he could not meet the finances of two households. He denies financial abuse, but there is a text message bargaining the home against the Cs: “The house will not go on the market until I know I have access to my children. I don’t care if it’s repossessed, you are not taking my children away from me.”

This is another example of controlling behaviour.

[57]Considering all the other factors in PD12J:(a) the views of parties and Cafcass: M considers a fact finding hearing necessary, and F and Cafcass do not.

(b) I consider the admissions above provide a sufficient factual basis in all areas except sexual abuse where there is a complete dichotomy between the Ps; however, this is the area which has least direct impact upon the Cs who will have been unaware of anything of this nature during the relationship and the Ps will not have discussed it with them since the separation.

(c) Neither party was legally aided so there was no evidence provided to obtain that funding that could provide a sufficient factual basis.

(d) The admissions, when taken together with the text messages, and what the Ps and the Cs have said to Cafcass and the police, does provide a sufficient factual basis:

• F told Cafcass during the s. 7 report:

“he does not hit the Cs with the intent to hurt them, but he does tap the Cs on the head…F states these [describing the occasion X hit his face on the fence in the park, and the time F held X on the bed to prevent him rolling off the bed] are small incidents that have been blown out of proportion and do not demonstrate that he is violent towards his Cs…F said his parenting is not perfect, but he tries his best given X’s additional needs. F admitted to losing his temper but not by using violence.” • Y told Cafcass during the s. 7 report: “F does shout a lot. F will shout for no reason sometimes, if someone is being rude he will tell someone off.”

The Cafcass Officer described how Y then visibly shut down. She said she wanted to see F every 2 weeks, but would not explain why she had picked that specific number. • X told Cafcass during the s. 7 report:

“F would throw me, claw me, punch me in the chest…squeeze his leg, slammed his face into a metal bar at the park…fed up of him hurting me and everything else he does…Just tell him to stop and not get angry.”

He described feeling anxious regarding the incident in April 2025 when F held him down on the bed. He also said that he was worried about F finding out what he told her. (e) Whilst the Cafcass Officer’s view is not determinative, she has been able to make recommendations regarding contact, taking into account the Ps’ behaviour, and their insight into the impact of their behaviour on the Cs and the other P, and the risk of further similar behaviour, based on the above admissions and comments, without specific findings of domestic abuse (“Given the concerns regarding F’s use of physical chastisement and wishes and feelings of the Cs, I recommend that spending time with F is reintroduced on a gradual basis, to ensure the Cs’ emotional safety and to allow F the opportunity to undertake relevant parenting work. Specially I recommend fortnightly supervised contact between the Cs and F on a Saturday to take place in a suitable contact centre or agreed supervised setting. This to be in place for 12 weeks. Following the successful completion of work and absence of safeguarding concerns, contact should progress to a full day of unsupervised time once a fortnight, and then increased to two consecutive days of unsupervised time such as alternative weekends”). I am also satisfied that there is sufficient information in the agreed material that it would make limited difference to the likely outcome and ultimate contact arrangements, such that it would be disproportionate to hold a fact finding hearing to determine the remaining issues. (f) The nature of the evidence required to resolve the disputed allegations would be oral evidence from each P, which would take 2 days of Court time (including submissions and judgment). (g) As stated above, even if the disputed allegations were proved, they would be unlikely to make a significant difference to the risk assessment and contact arrangements over and above the undisputed facts, and as such would be of limited relevance. (h) a separate fact finding hearing is therefore not necessary and proportionate. If there are disputed allegations which need to be determined, they can be considered at a composite fact finding/final hearing.

[58]In addition to the factors specifically set out in PD12J, I also consider the overriding objective’s demand that a proportionate approach is taken to all cases, and the delay principle that delay is usually against the welfare interests of the children, both of which argue against reverting to a separate fact finding hearing at this stage.

Conclusion:

[59]M is therefore successful in her appeal on the basis of grounds 2 and 3, and DJ Mian’s decision not to hold a fact finding is set aside. However, I have reinstated the decision that a separate fact finding hearing is unnecessary on the basis of all the information available to the Court at this time. I will therefore list the matter for a 2 day final hearing which will allow time for the Ps’ to test the Cafcass Officer’s professional opinion through cross-examination, and for the Ps to give brief evidence if required to address any specific factual issue which the Cafcass Officer and/or the Court considers would make a material difference to the outcome of the case namely the contact arrangements.

[60]This draft judgment will be circulated via email to M’s legal representatives, who must share it with their client and F (as he is unrepresented so I cannot email him directly) for the purposes of them reading it and requesting any amendments. A formal handing down hearing is listed remotely at 3.30pm on 20th October 2025. Any corrections, amendments or clarifications must be sought by no later than 4pm on the day before that formal handing down hearing (via email through M’s legal representatives, who will pass the requests on to me). The Appellant’s counsel must also submit via email a draft agreed order by no later than 4pm on the day before that formal handing down hearing so that it can be amended and approved at the formal handing down hearing. Time for any appeal will run from the formal handing down hearing. HHJ Helen Arthur 13th October 2025