[2026] EWFC 144 (B)Case No ZW25P00658IN THE FAMILY COURT AT WEST LONDONWest London Family CourtGloucester House, 4 Duke Green Avenue,Feltham, TW14 0LRDate 16 June 2026
Before
HIS HONOUR JUDGE WILLANS
Between
BApplicantBRespondentJudith Murray KC (instructed by Kingsley Napley LLP) for ApplicantOlivia Magennis (instructed by Ribet Myles LLP) for RespondentHearing Hearing dates: Triage hearing on papersJUDGMENT
HHJ WILLANS:
[1]The child subject to this judgment is [X], a boy born on [ ] (now aged 3) (“the child”).[2]This is a case in which the applicant father, [ ] (“the applicant”) applied for child arrangements which was then stayed whilst the parties pursued a private arbitration route. Pursuant to this they appeared before Ms Catherine Wood KC (“the Arbitrator”) between 2-4 February 2026.[3]On 9 March 2026, the Arbitrator sent out her determination. The respondent mother, [ ] (“the respondent”) objects to the determination being made an order of the Court and has applied by C2 for the proceedings to be restored and for the Court to decline to endorse the determination. Consequent upon this she would seek for the fact-finding to be reheard by the Court with welfare to follow. The applicant seeks for the determination to be made an order of the Court.[4]I have considered the documents filed by the parties and in particular the determination and the respective skeleton arguments filed by each party.
Legal Principles
[5]The law in this regard is settled and both parties endorse the following approach: i) The arbitration process in this case related to the upbringing of the child and as such his welfare was paramount. As such the Arbitrator was to have regard to the welfare checklist in section 1(3) Children Act 1989 and given she was concerned with a rolled-up hearing involving both fact-finding and welfare was required to have regard to Practice Direction 12JFamily Procedure Rules 2010. ii) Family arbitration is governed by the Arbitration Act 1996 which is subject to the IFLA Children Arbitration Scheme Rules 2021. Under these rules a determination is final and binding on the parties subject to:(i) any challenge by way of appeal or review;(ii) any change the court making the order requires, and;(iii) any superseding determination or subsequent order superseding the determination which the Family Court considers ought to be made in the exercise of its statutory duty. iii) In Haley v Haley [2020] EWCA Civ 1369 the court was considering a challenge to a financial remedies determination and confirms that howsoever the challenge to the determination is made, the test is whether the determination was ‘wrong’ or ‘unjust because of a serious procedural or other irregularity’. This mirrors the test found in Part 30 FPR 2010. The application of these principles to determinations relating to child arrangements has been confirmed by Peel J. in G v G [2022] EWFC 151.In this decision Peel J. confirms the overriding duty on the Court making the ultimate order to be satisfied it is proper to do so having regard to the welfare of the child. This means the arbitration process cannot and does not oust the jurisdiction of the Court and the Court should when considering the terms of the draft order following any arbitration appropriately scrutinise its terms and can if appropriate refuse to endorse some or all of its provisions. This is the case whether the determination is supported by one of both parties. iv) When considering the test to be applied in the case of a challenge to a determination the Court confirmed the test to apply is whether the determination was wrong and within that test, procedural irregularity or error of law may form part of the grounds of challenge. v) As to the procedure to be followed on a challenge to a determination, Peel J. set out the following process: a) An application to challenge an arbitral determination should be made by Form C2; b) That application should be filed in the appellant’s local court; c) That application should contain the statement “This is a challenge to an arbitral determination dated [date] made by [name of arbitrator]. The grounds of challenge are annexed at page 9”; d) The appellant should file and serve the Form C2 within 21 days of the date of the arbitral determination in its final form; e) The application should attach grounds of challenge, a skeleton argument not exceeding twenty pages, and the determination; f) The gatekeeper issuing the application shall direct that the application be considered by a Circuit Judge without a hearing not sooner than 21 days after the issue of the application however if the appellant considers that the application should be allocated to the High Court (Family Division), then a written request to that effect should be made at the time of making the application, to be considered by the gatekeeper. In this case HHJ Downey acting as gatekeeper determined the matter was suitable to be heard by a Circuit Judge. vi) The Court receiving the challenge should undertake a triage stage to consider whether the challenge has a real prospect of success. This mirrors the approach taken when considering permission to appeal under Part 30. If that gateway is crossed then the Court will proceed to a inter partes hearing in which the Court carries out a review (not rehearing) of the decision. This will mirror a substantive appeal hearing. If the gateway is not crossed then the order incorporating the determination will be made. vii) In considering a structure which closely mirrors the appellate process it would seem only appropriate to remind myself of several principles that apply in such context. I accordingly note: a) A real prospect of success is a real prospect of showing the Arbitrator was wrong (as set out above). This does not equate to showing an appeal would be more likely to succeed than fail. A lower hurdle applies. b) The Court will give appropriate latitude to the first instance decision maker and particularly so where this is a legally qualified decision maker. Such a decision maker is not expected to spell out every aspect of their reasoning. Some matters can be taken for granted with the essence of a robust judgment being one which clearly informs as to the conclusion reached and provides a satisfactory and adequate explanation as to why that outcome was favoured. c) In this case the decision maker heard live evidence and was well placed to assess the witnesses who appeared before her. The appeal Court should always be alert to the distinct benefit that accords to a first instance decision maker who has this advantage. d) Furthermore, the decision maker was engaged in a fact-finding process. The central purpose of a fact-finding process is to hear live evidence so as to place the decision maker in the best possible position to determine the truth of what occurred. As a consequence it is expected that such decisions will be significantly and often decisively informed by the live evidence heard. As such the first instance decision maker has an important qualitative advantage to any court on appeal and the Court on appeal should recognise this advantage and be slow to intervene save where the same is shown to be warranted. e) The appeal court must remind itself that appeals are by their nature reviews of decisions not rehearing’s. It is not for the appeal court to substitute a different decision because it favours the same but rather only to do so where the decision can be seen to fall outside of a reasonable band of decisions that could be made on the facts. f) The Court is also mindful not to engage in a process of island hopping in which the appeal focuses in on discrete points which are said to favour the appeal whilst losing sight of the broader landscape on which the decision is rooted and which underpins its robustness.
The grounds of challenge
[6]I remind myself this determination was intended to resolve both disputed questions of fact (‘fact-finding’) and the appropriate welfare outcome for the child (‘welfare’), The respondent pleads five substantive grounds of challenge as follows: GROUND 1 1. The learned Arbitrator failed to appreciate the significance and seriousness of the father’s behaviour as established by both the father’s admissions and the Arbitrator’s findings; in light of those findings the Arbitrator’s findings that the father was not a perpetrator of coercive and/ or controlling behaviour was wrong. GROUND 2 2. The learned Arbitrator’s definition of controlling and coercive behaviour was overly simplistic and wrong. This lack of nuance led the Arbitrator into error in concluding that the father’s behaviour had not been controlling and coercive. GROUND 3 3. The learned Arbitrator was wrong in concluding that the mother’s specific allegations 3(d) and 6(a) were not proved in light of the father’s admissions to the facts as alleged. The learned Arbitrator was wrong to record that, in respect of Allegation 2(g), the father had accepted that what he said on this occasion was not appropriate. The Arbitrator’s failure to acknowledge the father’s admissions and their significance compounded her failure to assess the evidence, and the findings she had made, overall. It can be seen that these challenges go to the fact-finding process undertaken by the Arbitrator. The challenge appears to be as to the application of the law and the extent of the findings made. In summary it is said the conclusion of the fact-finding element of the process was ‘wrong.’ GROUND 4 4. In light of the findings the Arbitrator did make, the arbitrator was wrong to conclude that a) it was not necessary for the father to attend a domestic abuse perpetrator course, and b) that there should be a ‘shared lives with’ order. GROUND 5 5. The Arbitrator was wrong to set down a fixed timetable for the progression of X’s time with the Father in light of the findings she had made, and [the ISW’s] caution as to recommendations for a permanent pattern of care without knowing what findings, or ‘bundles’ of findings, would be made.[7]These grounds of challenge relate to the welfare aspect of the determination and focus particularly on the ultimate child arrangement favoured by the Arbitrator. The Determination 8. Overview
The Determination
[8]This was an extended three-day arbitration during which the Arbitrator heard live evidence from each party and from an appointed ISW. In her determination she appears to have considered twenty-six alleged items of abuse raised by the respondent making findings as referenced in §20 below. The applicant also made separate allegations although they are not central to this challenge. Armed with these conclusions and in the light of the evidence and the recommendation of the ISW she proceeded to determine the child should live with both parents on a developing pattern over the course of approximately one year. By the end of the period the child would be spending 6 nights with the Applicant and 8 nights with the respondent each fortnight. This would be under a shared lives with order. The determination also provided for the sharing of holidays. Detailed[9]The determination is a comprehensive document running to [223] paragraphs over fifty-six pages. It is followed by an appendix detailing the allegations made and the findings reached.[10]I note:10.1 §1-8 provided a short summary of the process leading to the Arbitration.10.2 §9-10 gave a brief overview of the hearing.10.3 §11-13 sets out the nature of the allegations made. The respondent’s case was that the numerous allegations raised painted a picture of an overarching pattern of controlling and coercive behaviour indicative of an abusive relationship in which both she and the child were victim. The applicant was noted to accept some verbal abuse and unkind language but this was explained in the context of the parenting relationship. The applicant denied all allegations towards the child and also the allegations of violence towards the respondent. The applicant’s allegations were identified as having a theme of the respondent seeking to control the parenting role for the child and by being constantly critical and undermining of his role as father.10.4 §14-20 set out the competing proposals. The applicant appears to have been seeking equal care after about 4-months. Based on the findings sought the respondent opposed overnight contact at that time and argued for contact to continue with a level of overview and support.10.5 §21-149 sets out the full background to the case incorporating the various allegations made within a clear and detailed timeline.10.6 §150-154 sets out the law. The Arbitrator references a note of law provided by counsel, PD12J, the law relating to fact-finding and section 1 Children Act 1989.10.7 §155-160 sets out a brief overview of the evidence given by each party.10.8 §161-183 sets out the analysis and conclusions as to fact-finding.10.9 The Arbitrator then turned to welfare.10.10 §184-191 sets out the evidence of the ISW.10.11 §194-208 sets out the welfare analysis incorporating PD12J.10.12 §209-223 sets out the analysis and decision.
The Submissions
[11]Ground 1 The complaint is that the Arbitrator failed to give adequate weight to a combination of the admissions made by the applicant and the findings made in the determination. It is contended she failed to step back and survey the overall landscape of the applicant’s behaviour and the impact of the same on the respondent. As such a finding that the applicant was not a perpetrator or coercive and controlling behaviour was wrong. At §23 of the skeleton counsel sets out the admissions made and at §24 sets out the findings made by the Arbitrator. Counsel then [§25-28] sets out aspects of PD12J and the relevant case law in this regard. At §29 it is said the Arbitrator ‘minimised the seriousness of the findings made’ and had failed to take an overarching assessment; that she failed to appreciate the true significance and seriousness of the findings or that they established a pattern of controlling and coercive behaviour. It is said the approach taken effectively attributed equal blame to both parents for what took place and minimised the behaviour in a manner inconsistent with the modern understanding of the corrosive effects of domestic abuse. In response it is said the Arbitrator carefully examined and understood the significance and seriousness of both parties’ behaviour. It is argued she provided a thorough and lengthy determination which was well within the ambit of her discretion.[12]Ground 2 This ground repeats aspects of Ground 1 in raising complaint as to the non-finding of coercive and controlling behaviour on the part of the applicant. Counsel notes the features identified by the Arbitrator as to why she did not make such a finding despite the underpinning findings/admissions but argues the significance of the findings was overlooked in reaching conclusions. In response it is disputed the Arbitrator did not have a full understanding of coercive and controlling behaviour. Attention is drawn to the wide-ranging evidence available to the Arbitrator to enable her to reach the conclusion she did.[13]Ground 3 The complaint here is that two allegations were wrongly not found proven given the admissions made and the consideration of one allegation wrongly attributed to the applicant a level of admission out with his evidence. In response it is argued the findings of fact cannot be criticised. The Arbitrator was well aware of the admission which were fully explored and were correctly taken into consideration as reflected in the annex to the determination.[14]Ground 4 It is said the Arbitrator erred in not requiring attendance at a domestic violence course. Secondly, she failed to have regard to the implications of her findings when considering the need for an ongoing high level of communication and co-operations associated with a shared care order. In response it is noted the ISW recommendation as to undertaking a domestic violence course was in the context of findings being made broadly in line with the allegations raised. It is noted the vast majority of the findings were not proven and as such reliance on the ISW needs to be seen in that context. It is noted the shared lives with order followed the recommendation of the ISW and as such cannot be said to be wrong.[15]Ground 5 It is accepted the Arbitrator had ISW recommendations which fitted with the determination but it is argued this only if findings were not made. Here findings were made and this should have materially impacted the application of the recommendations. It is argued the ISW was more cautious in their approach and that the Arbitrator should have returned to the ISW for further guidance as to risk assessment, welfare considerations, and progression of contact. In response it is argued it was right to fix a timetable for the progression of contact. It is said the caution expressed by the ISW reflected the gap in understanding given findings had not been resolved by that point in time but that the ISW made clear this could be left to the Arbitrator once findings were made. It is contended the respondent has demonstrated a complete resistance to the child enjoying a full relationship with the applicant and has since the determination unilaterally stopped overnight arrangements.
Analysis
[16]When I stand back having considered the determination with the care it deserves and the comprehensive skeleton arguments it appears to me the central focus of this appeal must be on Ground 1. The essential heart of this appeal is that the Arbitrator made errors in regard to her fact-finding process but more significantly in the calibration of the findings/admissions she had before her. The contention is that this error led to a minimisation of the significance of the applicant’s behaviour with a corresponding failure to recognise the behaviour for what it was (coercive and controlling) and with consequent and direct implications for the welfare outcome.[17]The Arbitrator provides a comprehensive and helpful timeline of the events under consideration. Any understanding of her decision requires consideration of the care she took in drawing together the threads of the complaints and chronology. Having provided an overview of the evidence of each parent, each of whom she found to some extent unsatisfactory, she then provided her analysis of what the evidence showed her.[18]This analysis recognised the poor conduct of the applicant including the abusive language he used, which she considered to be appalling. However, there were many allegations which the Arbitrator did not find established (and there is not challenge to this). Her conclusions in summary were that: i) The parents were each critical and undermining of the other’s care and parenting of X. ii) When disagreements arose, each parent sought to assert their view as to what was best for X, the father would become verbally abusive towards the mother and make hurtful, nasty comments and on occasion there would be some jostling/ pushing. iii) There were occasions when X was present whilst the parents were discussing matters and/or arguing and the father did not modify his language. iv) The father did not deliberately cause any physical harm to X. v) The father has not caused emotional or psychological harm to X beyond that which X experienced by witnessing disagreements or arguments. vi) The father is not a perpetrator of coercive and/or controlling behaviours.[19]In her appendix to judgment she fills out this summary with regards to the specific allegations. It is only right to record that as far as the applicant’s allegations are concerned, whilst she made no findings of note the Arbitrator did reach conclusions that the behaviour referenced in relation to a number of the allegations did not reflect well on either parent. This fits with her conclusion of a conflicted and fracturing relationship in which each had a firm view of the best parenting style to be applied and were inflexible to the others view.[20]In the case of the respondent’s allegations(i) she rejected the allegations of the applicant causing physical harm to the child. She noted two matters were fairly described as accidents and one included the respondent’s response being an overreaction stemming from her view as to the applicant;(ii) under the category of ‘emotional and psychological harm to the mother’ the Arbitrator carefully explains how it is that whilst finding certain inappropriate words used and that the same were unpleasant, nasty and abusive, they were not such as to be intended to humiliate, evidence of gaslighting or threatening;(iii) in relation to allegations of physical violence towards the respondent the Arbitrator did make a finding of inappropriate rough behaviour whilst drunk but beyond that whilst making limited findings of physical contact placed this into the context of the ongoing parental dispute as to how best to manage events as they arose;(iv) in relation to allegations of coercive and controlling behaviour the Arbitrator was not persuaded the conclusions she had drawn supported such a finding given context and the behaviour patterns of each party;(v) with regards to verbal abuse the Arbitrator largely accepted a high level of unpleasant and abusive language but placed this within her assessment of the context of the regular disagreements about parenting and the role of each parent in carrying out the parenting functions, and;(vi) last, in regards to allegations of emotional harm to the child the Arbitrator accepted there had been inappropriate words and language in the presence of the child, regarded this as part of the pattern of behaviour noted under the other headings, recognised this was have been confusing for the child but did not find it such as to likely cause harm to the child as alleged although she made the broader finding at §18(v) above.[21]There is clear case law dealing with the question of assessing behaviour and determining whether it falls into the category of domestically abusive conduct. Alongside this there is case law that reminds decision makers that not all unpleasant, upsetting, unkind or indeed abusive behaviour is to be viewed in this way: L v F [2017] EWCA Civ 2121 (referred to as Relocation: Second Appeal in Re H-N).[22]Having reflected on all of these points I cannot see that there are real prospects of Ground 1 or Ground 2 succeeding on appeal. The Arbitrator was well placed to assess the context of the poor behaviour which she identified and accepted. She was not bound to classify the same as being coercive or controlling in character but was entirely able to view it through the prism of the context which she had found to have existed between the parties. Her analysis in this regard is robust and reasoned in recognising fault on the part of the applicant but placing it within the context of the relationship then obtaining between the parties. Her analysis in this regard far from lacking the nuance claimed plainly has regards to the complex nuance that can and in her judgement did arise between these two parents who sadly took a very contradictory view as to the best manner in which to raise their child. This led to very unpleasant language but this was not by definition coercive or controlling in character. The Arbitrator was obliged to investigate the circumstances surrounding the allegations and behaviour found. It was her duty to then apply the conclusions she reached in a manner that fitted with her assessment.[23]Contrary to the contention made it appears to me the Arbitrator did exactly what she is alleged not to have done. It appears she reviewed all the evidence and then stood back to review it globally in the context of the events surrounding the behaviour. By doing so she felt able to calibrate the behaviour in the manner she did finding it to be wholly unacceptable but not such as to deserve the label sought or to restrict the relationship with the child as suggested. In my assessment the Arbitrator was not constrained to make the findings sought by the respondent and having made the findings she did was entitled to proceed to draw the conclusions she did. Whilst another tribunal might of course reach a different conclusion it is in my assessment not open to the respondent to argue that no tribunal could reach the conclusion reached in this case and on these findings.[24]Turning to Ground 3 this is plainly a focused criticism on a limited segment of the conclusions drawn by the Arbitrator. It has no real prospect of success when one views it in the context of the global findings reached. This is a challenge to a fact-finding determination where the Arbitrator was well placed to draw her conclusions having had the advantage of hearing all the evidence over three days. I struggle to see how the matters raised under this heading would in any event have materially altered the conclusions elsewhere drawn by the Arbitrator.[25]Having reached the conclusions she did it is clear the Arbitrator was entitled to conclude that there was no need for the applicant to attend a domestic abuse course. The arguments as to welfare outcome are difficult to maintain in the light of the failure of Grounds 1-3 above and in the light of the review of the evidence of the ISW provided by the Arbitrator. Her summary sets out in clear terms the contingent recommendations provided by the ISW which were dependent on the outcome of the fact-finding process. Her overview of the evidence makes clear that the application of her own findings permitted a clear route towards the order she favoured. In such circumstances it is clear to me that Grounds 4 and 5 of the challenge also have no real prospects of success. In short armed with her conclusions as to the allegations and in the light of her welfare analysis and informed by the ISW report the Arbitrator was entitled to order child arrangements in the manner she did. I accept had she made more substantial findings then this may have been different. There is nothing in the judgment to suggest the Arbitrator failed to understand this. But she did not make the findings and was therefore obliged to proceed on the conclusions she had reached.[26]For the above reasons I reject the challenge to the determination and intend to make an order in the terms set out within the draft order provided and attached as annex 1. On the basis of the content of the determination this is a child arrangements order which fits with the welfare needs of the child. I approve the analysis set out by the Arbitrator and do not need to supplement the same.[27]This decision will now be sent to the parties and I will accept any proposed corrections or requests for clarification if received by 4pm on 12 June 2026. I would also welcome any proposed redactions for the purposes of publication beyond that contained within the linked ‘closed judgment’ copied at the same time. For the avoidance of doubt this judgment will be taken to be handed down electronically at 10am on 16 June 2026 without attendance with the final order being made at the same time. HHJ Willans