ER v NT (Need for fact finding hearing) [2025] EWHC 2146 (Fam)

[2025] EWHC 2146 (Fam)

Case No FA-2025-000045

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27/08/2025

Before

MR JUSTICE MACDONALD

Between

ERAppellant

NTRespondent

Ms Katy Chokowry (instructed by Hunters Law LLP) for Appellant

Ms Lucy Bennett (instructed by Kelly Family Law) for Respondent

Hearing Hearing dates: 7 July 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 27 August 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

MR JUSTICE MACDONALD

[1]I have before me an appeal from the decision of HHJ Godwin (hereafter ‘the judge’) sitting at the East London Family Court on 14 February 2025. The appeal arises in the context of an application by NT (hereafter ‘the father’) under Part II of the Children Act 1989 for a child arrangements order providing for him to spend time with his daughter, CT, born on 22 March 2023. On 14 February 2025, the Judge dismissed an application for a finding of fact hearing into allegations of domestic abuse and coercive and controlling behaviour made by the appellant, ER (hereafter ‘the mother’), against the father. The mother is represented by Ms Katy Chokowry of counsel. The father is represented by Ms Lucy Bennett of counsel.

[2]At the outset of this hearing I dealt with two preliminary applications by the mother. First, an application to amend her grounds of appeal and lodge an amended Skeleton Argument. Whilst opposed by the father, I granted that application on the grounds that the agreed note of the judge’s judgment was not available at the time the original grounds of appeal and Skeleton Argument were lodged. The mother now relies on the following grounds of appeal against the order of 14 February 2025 dismissing her application for a fact finding hearing and ordering interim contact: i) The judge failed to give adequate reasons for dismissing the mother’s application for a finding of fact hearing. ii) The judge was wrong in failing to specifically address PD12J in light of the disputed allegations of domestic abuse. iii) The judge failed to conduct an analysis of the evidence and/or gave undue weight to some of the evidence. iv) The judge was wrong to place reliance on the course completed by the father with ‘Anger Planet’. v) The judge failed to consider PD12J before making an order for indirect contact.

[3]By the second preliminary application the mother applied to rely on fresh evidence on appeal. Ms Chokowry did not pursue the application with respect of certain text messages, but sought the admission of a letter from the mother’s GP that was directed at the hearing before the judge addressing her PTSD. I allowed that application in circumstances where I was satisfied that the evidence could not have been discovered and presented at the hearing on 14 February 2025, the court only directed the evidence on that date, the evidence would be likely to have a substantial influence on the case and the evidence is credible and likely to be believed by the court (see Ladd v Marshall

[1954] 1 WLR 1489

[4]Within this context, in determining this appeal I have had the benefit of reading the appeal bundle and supplemental appeal bundle, the agreed bundle of authorities and materials and the very helpful Skeleton Arguments prepared by Ms Chokowry and Ms Bennett. I reserved judgment and now set out my decision and the reasons for it.

BACKGROUND

[5]The parties commenced their relationship in 2002 and commenced co-habiting in 2005. The mother contends that the entirety of her relationship with the father was characterised by drug and alcohol misuse, coercive and controlling behaviour and verbal and physical domestic abuse. Within her evidence, the mother raises the following allegations (which I set out chronologically): i) Between 2005 and 2023 the father suffered a number of psychotic episodes and was sectioned under the Mental Health Act 1983. When these reoccurred, the father’s mother told the mother not to seek medical attention as the father would again be sectioned. ii) From 2007 the mother became aware that the father was habitually using cocaine. iii) In 2013, the father tricked the mother into getting into his van believing he was giving her a lift to work. The father called the mother’s employer without the mother’s knowledge to say she was not well and drove her around in the van erratically, taking her to country roads and threatening that he would take out the hammer in the back of his van. iv) In 2013 and 2014 the father was consuming alcohol to excess, resulting in him becoming abusive to the mother. v) In June / July 2014 the father was possessive of the mother, calling her several times a day to see what she was doing and accusing her of cheating. vi) In June / July 2014 the father accused the mother of having an affair with a work colleague and contacted the work colleague’s partner to accuse him and the mother of having an affair. vii) In 2015 / 2016, the father deflated the tyres on the mother’s car and, in a jealous rage, pinned a chair against the mother’s throat. viii) In 2015 / 2016, the father pinned the mother against a wall with great force and put a knife to her neck, causing bruising. ix) In 2016 the father was dealing in cocaine. x) On 21 November 2016 the father was verbally abusive to the mother following an argument about cleaning the kitchen. xi) On 28 November 2016 the father threw two cups of water at the mother. xii) On 23 December 2016, the father forcefully slapped the mother, causing red swelling across her face and neck and threw three pints of water over the mother. xiii) In 2017 the father relapsed whilst on a 12-step programme and began using cannabis, cocaine, crack cocaine and alcohol again. xiv) On 2 June 2017 the father verbally abused the mother after she opened a second sachet of cat food and later verbally abused her after she had let the soup boil. xv) On 6 June 2017 the father verbally abused the mother by shouting at her “answer the question you cunt. I feel like spitting on you right now.” The father demanded that the mother go to the bedroom and not speak to him, which she did. xvi) On 28 June 2017, the father physically assaulted the mother causing bruising and threatened her that she was “lucky to be alive” and that he was “going to put a knife in you”. The father picked up a work tool and threatened the mother that he “would smash it across your feet”. The father then placed his hands over the mother’s mouth, preventing her from breathing. xvii) On 28 February 2022 the father refused to allow the mother to inform friends and family that she was pregnant and shouted and swore at the mother, leaving her feeling isolated. xviii) On 28 February 2022, the father began arguing with the mother. He verbally abused her before pushing the door against her foot with force, causing injury. xix) On 15 March 2022 the father refused to accompany the mother to a scan after she suffered spotting and showed no sympathy or concern when she was told she would likely miscarry. xx) On 16 March 2022 the father informed the mother that “you’ve only got yourself to blame” when she started bleeding heavily and called the father for support, left her to drive herself to hospital whilst having a miscarriage and blocked her calls and messages. xxi) Thereafter, on 18 March 2022, the father accused the mother of having an abortion. xxii) On 3 April 2022, 7 April 2022 and 19 April 2022, the father again accused the mother of having an abortion and demanded to see her medical records. xxiii) In October 2022 the father verbally abused the mother, telling her that she was pissing him off, to fuck off, and that if he wanted to drink he would do whatever he fucking wants. xxiv) On 12 March 2023, the father threatened the mother with a demand for shared custody whilst the mother was heavily pregnant. xxv) On 20 March 2023, the father demanded that the name of the unborn child would be T and informed the mother there would be no compromise, negotiation or discussion on the subject. xxvi) Following CT’s birth, between 22 March 2023 and 25 March 2023, the father accused the mother of being negligent and risking harm to CT, causing the mother to feel inadequate and embarrassed before nursing staff and midwives. xxvii) On 5 April 2023, the father smacked the mother’s leg whilst she was holding CT. xxviii) On 8 April 2023, the father left the mother to care for CT unsupported two weeks after her birth. xxix) On 19 April 2023, the father drove erratically with the mother and CT in the car, risking significant harm to them both. xxx) On 10 May 2023, the father was verbally abusive towards the mother, calling her “scummy”, questioning her parenting and calling her a “cunt”, a “snake”, a “fuck” and raising his voice. xxxi) On 27 May 2023 the father was again verbally abusive towards the mother, calling her a “cunt” and “disgusting and disrespectful”. xxxii) On 26 June 2023, the father was again verbally abusive to the mother at her father’s house, calling her “a bike”, “selfish” and a “controlling bitch”. xxxiii) On 31 October 2023, the father took a picture of the mother without her consent whilst she was breastfeeding CT.

[6]Two Cafcass safeguarding letters were prepared, the first dated 25 January 2024 (prior to the interview with the mother) and an updated latter dated 13 February 2024. This latter letter recommended that the court consider the terms of PD12J in order to determine the necessity of a fact-finding hearing, directions to midwifery to release any record of the mother reporting her allegations, a s.7 report and a number of directions in respect of the father’s alleged drug and alcohol misuse.

[7]In the process of filing evidence, and ahead of the hearing before the judge on 14 February 2025, the father made a number of admissions in response to the mother’s allegations. These were recorded in the order of 15 August 2024 at a hearing before Magistrates. One of the difficulties in this appeal is identifying precisely which of the admissions made by the father in response to the mother’s allegations as set out above were taken into account by the judge in reaching his decision that a fact finding hearing was not necessary. The admissions are not recorded in the judgment or on the face of the order of 14 February 2025, nor does the order refer to a document in which those admissions are set out. With respect to the judgment delivered by the judge on 14 February 2025, having referred to the mother’s allegations set out in the foregoing paragraph as “the serious allegations she has raised against F in relation to physical abuse she says has happened during the course of their long relationship”, the admissions made by the father are referred to by the judge as follows:

“It’s fair to say F has made certain admissions in relation to those allegations and those admissions make clear that M has been a vulnerable person in relation to F and that is something that needs to be taken into consideration when the court considers the degree of risk on future conduct on his part.”

[8]As I have noted, the admissions made by the father were set out in recitals to the order dated 15 August 2024 as follows (adopting the same chronological order as utilised when summarising the mother’s allegations above): i) The father was diagnosed with a drug induced psychosis in 2001 when he was 19 years old. He was admitted to hospital but not sectioned. ii) The father smoked cannabis daily in his late teens. iii) Between 2006 and 2007 the father used cocaine, but did so only occasionally and recreationally, most often on weekends. iv) The father’s cocaine use increased in 2011 and he sometimes used it once per week. v) The father’s cocaine use increased again in 2013 and there were occasions when he used it twice per week. vi) On one occasion “years ago and before CT’s birth”, the father went through the mother’s work emails on her phone and forwarded selected emails to his own email address. vii) In 2017 the father recognised he had a substance misuse problem in respect of both drugs and alcohol and started to take steps to manage these issues. viii) The father relapsed between 31 December 2017 and 6 January 2018. ix) By 2021, the father was drinking alcohol and smoking cannabis socially. x) On one occasion before CT was born the father told the mother to get out of bed and go to her father’s house following an argument. The mother “chose” to sleep in the hallway. xi) In March 2022 the father accused the mother of having an abortion (later texting the mother to apologise and say it was not her fault), encouraged the mother to lodge a complaint with the hospital (the hospital later “admitting they made a mistake in the process”), asked the mother questions such as ‘How did you know that they didn’t take you to theatre and do an operation on you when you passed out’, sent the mother multiple messages with medical information and was very distressed and upset for both himself and the mother as a result of the miscarriage and took it out on the mother. xii) The father used substances occasionally in October 2022. xiii) Following CT’s birth he and the mother argued on the ward and he overreacted when the mother fell asleep with CT in her arms. xiv) In April 2023 the father took a picture of the mother holding CT as he was concerned the mother was holding her too tightly and she was struggling to breathe. xv) In June 2023 the father called the mother a “controlling bitch” in the context of an argument and feeling under pressure from the mother to sell his flat.

[9]The matters set out in the order of 15 August 2024 reflect the position set out by the father in his witness statement. Neither in the order of 15 August 2024 nor in his statement does the father make any admissions in respect of the allegations that involved the use of physical violence, threats to kill, obstruction of the mother’s breathing, kidnapping or coercive and controlling behaviour. As I have noted, those matters were not dealt with substantively in the judge’s judgment on 14 February 2025.

[10]At the hearing on 14 February 2025, the judge had a hearing bundle which contained the statement of the parents, together with the father’s response to the schedule of findings sought by the mother. With respect to the father’s response to the mother’s allegations, a number of matters are important to note.

[11]First, in respect of certain of the allegations the father does not simply deny those allegations but makes counter-allegations against the mother. Thus, for example, in response to the mother’s allegation that the father would be possessive of the mother and would call her several times a day to see what she was doing and accuse her of cheating, the father denies this conduct and asserts it was the mother who was very possessive of him, which often led to arguments between them where she accused him of seeing other women. Second, with respect to the majority of the allegations of verbal abuse between 2016 and 2023 (for example, shouting at her “answer the fucking question you cunt. I feel like spitting on you right now"), the father does not deny these but rather states that he cannot“recall” them. Third, with respect to the allegations of physical abuse, whilst the father denies most of the allegations of physical abuse, he makes a number of admissions with respect to the events surrounding the alleged physical abuse whilst denying the abuse itself. By way of further examples: i) The father admits to some drug and alcohol misuse, but his admission does not extend to the impact on his behaviour and his consequent abuse towards the mother and the impact on her. ii) The father denies all but one episode of drug induced psychotic behaviour. The mother states that there was at least 6 such episodes. iii) While admitting that he accused the mother of having an affair with a work colleague, the father denies this amounted to controlling behaviour or that this was an ongoing issue in respect of males that the mother socialised. iv) The father denied controlling the mother in respect of sharing the news of her pregnancy. v) The father denies his emotionally abusive behaviour surrounding the mother’s pregnancy and loss in 2022. vi) The father accepts calling the mother a controlling bitch following CT’s birth. He states that this was wrong, “however he felt controlled by” the mother. vii) The father denies taking a photograph of the mother breastfeeding CT covertly and without consent. viii) The father denies the allegations of serious physical abuse including the allegation of kidnapping, holding a knife to the mother’s throat, holding an upside down chair to her throat, slapping her causing swelling and placing his hands over her mouth preventing her from breathing, pushing the door against her foot causing pain, smacking the mother’s leg while she held CT, driving erratically and dangerously while the mother and CT were in the car.

[12]The matter came before the judge on 14 February 2025. In an ex tempore judgment the reasons given by the judge for refusing to direct a finding of fact hearing centred on his assessment that the father had made sufficient admissions, that none of what the judge characterised as the serious allegations post-dated the birth of CT, that the father had sufficiently addressed his substance misuse and anger management issues with ‘Anger Planet’ and that directing a finding of fact hearing would cause undesirable delay in the proceedings.

[13]With respect to the judge’s assessment that the father had made sufficient admissions, as I have noted

the judge held as follows:

“[4] Those allegations raised by M earlier in proceedings and have been addressed by both parties in witness statements. It’s fair to say F has made certain admissions in relation to those allegations and those admissions make clear that M has been a vulnerable person in relation to F and that is something that needs to be taken into consideration when court considers the degree of risk on future conduct on his part.”

[14]As to the judge’s view that it was significant that none of the serious allegations post-dated the birth of CT,

the judge observed as follows:

“[5] None of the serious allegations post-date birth of CT on 22/03/23. Subsequent to her birth there was a period during which F had contact with his daughter and separation post-dated birth by 3 months. I have heard submissions on various proposals to contact and Beth Hibbert (counsel for F) indicated that there was a period between June and November when the parties were going swimming together and meeting in the community and there was no difficulty. Contact continued for a number of weeks with no conflict. There has been nothing raised post-separation which will not be dealt with by the behaviour F has already admitted.”

[15]The judge’s assessment that the father had sufficiently addressed his substance misuse and anger management issues was articulated by

the judge as follows:

“[6] Since these proceeding have begun Cafcass has filed a safeguarding letter and F has acted on the recommendations made by Cafcass in that he has addressed his misuse of illicit substances and also addressed his anger by attending a 3-day course. The court has in the bundle a report from the anger management specialist, Mr David Woolfson. In her position statement for this hearing, Ms. Hibbert on behalf of [the father] sets out a number of paragraphs from Mr Woolfson’s report which indicates that in his view F has taken a very adult attitude towards his past behaviour and whilst he has written reports of this nature for over 20 years, he was unusually deep in thought in relation to F’s performance and was considerably touched and impressed by him. Certainly he is of no two minds that F benefitted significantly from that course.”

[16]Finally, with respect to the impact of delay, the judge held as follows with respect to the impact of delay on the question of whether a fact finding hearing was necessary:

“[8] The alternative would be for the court to direct today that there should be FFH to address those matters of concern raised by Ms. Diegan on behalf of M. Ms. Diegan emphasises that during the relationship, a long relationship, F made threats to kill M and that the impact of F’s behaviour in relation to M over years represents a significant risk not only to M but also to child, and that justifies the court directing that those matters highlighted by M should be the subject of a FFH. [9] Unfortunately such hearings in this court if requiring 3 days are likely to require a listing 9-12 months hence and Ms. Hibbert says that given the age of the child and the length of time since F last had contact, the last time being on 30/11/23, that this is a delay the court should not sanction given that, even if a FFH were held, the findings will then require a report from Cafcass to be prepared and will thereby engender further delay in this matter, and that would be an additional 18 months hence from today.”

[17]In the foregoing circumstances, the judge concluded that a finding of fact hearing was not necessary. The sealed order records the rationale for the judge’s decision as being “the court has sufficient information to assess any risk posed by Father to the child or mother on the basis that mother feels vulnerable in father’s” (sic). The judge’s ex tempore judgment makes no mention of PD12J nor of the authorities dealing with the principles applicable when determining whether it is necessary to direct a finding of fact hearing in the context of the disputed issues of fact between the parties. However, a recital to the sealed version of the order states that “Domestic abuse has been raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child having regard to PD 12J.”

[18]The sealed version of the judge’s order directed a report from Cafcass pursuant to s.7 of the Children Act 1989 by 4 July 2025 dealing with how contact between the father and CT should progress. Notwithstanding the decision of the judge that a finding of fact hearing was “... not necessary as the court has sufficient information to assess any risk posed by Father to the child or mother on the basis that mother feels vulnerable in father’s” (sic), and in the context of the recital in the order stating “Domestic abuse has been raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child having regard to PD 12J”, the directions to Cafcass for a s.7 report was in the following terms (emphasis added):

“8. By 4pm on 4 July 2025, CAFCASS shall send to the court and the parties a report under Section 7 of the Children Act 1989, dealing with: a. whether there should be contact between the child and the father. b. recommendations for how contact between the child and the father should progress. c. the mother’s concerns about the father’s domestic abuse, alcohol and drug misuse and mental health having regard to the father’s admissions in response to mothers’ allegations the court having determined that an assessment of the risk posed by father can be made without a discrete fact-finding hearing on the basis of the admissions made and the time spent by the child with father since the parents separated. d. recommendations for a final order, including a stepped arrangement where recommended.”

[19]In addition, the directions made on 14 February 2025 included a direction for the mother to file and serve a statement dealing with “Information about her diagnosis of PTSD.” The judge’s judgment addressed this issue as follows:

“On the basis of the submissions I have heard it seems to me that the first essential step now is for M to file evidence in relation to her own PTSD, where there has been assistance from GP and others, and also evidence around the child’s anxiety and separation issues which is available from health visitor on making a disclosure order”

. The recitals to the sealed order of 14 February 2025 further explain the rationale for the resulting direction as follows:

“The court directed that it be provided with further information about the mother’s diagnosis of PTSD and about the child’s separation anxiety before it is able to determine how any direct contact between the father and the child may progressed.”

[20]Finally, during the course of proceedings the father raised the issue of CT’s paternity. The rationale for the father’s position appears to be that mother received fertility treatment in the months prior to conception (including receiving Cyclogest pessaries and undergoing an HCG blood test), although it would not appear that the mother received any IVF treatment cycle at this time. On 15 May 2025, DNA testing confirmed that the father is the father of CT. The father denies that his late raising of the issue of paternity was itself an act of coercive and controlling behaviour.

GROUNDS OF APPEAL AND SUBMISSIONS

[21]As I have set out, the mother relies on the following grounds set out in her amended Grounds of Appeal: i) The judge failed to give adequate reasons for dismissing the mother’s application for a finding of fact hearing. ii) The judge was wrong in failing to specifically address PD12J in light of the disputed allegations of domestic abuse. iii) The judge failed to conduct an analysis of the evidence and/or gave undue weight to some of the evidence. iv) The judge was wrong to place reliance on the course completed by the father with ‘Anger Planet’. v) The judge failed to consider PD12J before making an order for indirect contact.

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

[2021] EWCA Civ 448

and K v K

[2022] EWCA Civ 468

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

[24]Had he applied the required approach, Ms Chokowry submits that the judge would have correctly assessed the character and extent of the allegations as being a course of longstanding coercive and controlling conduct by the father (including being emotionally and verbally abusive, repeatedly accusing the mother of infidelity, searching her phone and emails, restricting her from socialising, holding her in a van and threatening her with a hammer, pushing her against a wall and holding a bread knife to her throat, holding an upside-down chair against the mother’s throat, threatening to ‘put a knife through’ her and smash a work tool across her foot and undermining the mother in her care of CT). In that context, had he adopted the correct approach, Ms Chokowry submits that the judge would have concluded that a finding of fact hearing was necessary in circumstances where the allegations made were serious in nature, were relevant to the question of contact, findings being necessary to allow an accurate assessment of future risk to CT and the impact of any abuse on her and the mother, and that the father’s admissions fell far short of being an acceptance of the circumstances as they were alleged to be by the mother and not representative of the serious harm alleged relevant to an accurate risk assessment.

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

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

“[52] In like manner, the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being ‘in the past’, and therefore of little or no relevance in terms of establishing a risk of future harm, should, we believe, also be considered to be ‘old fashioned’ and no longer acceptable. The fact that there may in the future be no longer any risk of assault, because an injunction has been granted, or that the opportunity for inter-marital or inter-partnership rape may no longer arise, does not mean that a pattern of coercive or controlling behaviour of that nature, adopted by one partner towards another, where this is proved, will not manifest itself in some other, albeit more subtle, manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact upon the welfare of the children of the family. [53]…Where however an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.”

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

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

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

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

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

[31]Ms Chokowry submits that the foregoing principles are reflected in the case law, citing W (Children)

[2012] EWCA Civ 528

, in which Lady Justice Black (as she then was) held that a crucial part of a court’s consideration when ordering contact is the parent’s attitude to his past violent conduct and capacity to change and behave appropriately and the earlier decision of Re L (Contact: Domestic Violence)

[2000] 4 All ER 609

in which Dame Butler Sloss stated that in cases of serious domestic violence, the ability of the offending parent to recognise his or her past conduct, to be aware of the need for change and to make genuine efforts to do so, will be likely to be an important consideration.

[32]In this context, Ms Chokowry contends that the judge omitted to account for the following matters when placing significant weight on the ‘Anger Planet’ work: i) It is not apparent what nature and extent of domestic abuse the father admitted to for the purposes of the ‘Anger Planet’ course. If it is as set out in the father’s evidence in these proceedings, it constitutes limited admissions and minimisation of the abuse perpetrated. ii) The ‘Anger Planet’ course lasted 3 days. In comparison, a DAPP or Respect accredited course lasts from 26 weeks. iii) Mr Woolfson’s experience and qualification to address domestic abuse and coercive and controlling behaviour is not stated or known. iv) Mr Woolfson notes that “it is likely [the father] has taken on the learnings from the course…”. v) The father is recorded as describing the relationship with the mother as “toxic from both sides” and Mr Woolfson comments “in the past he has played his part in a toxic up and down relationship”. It is apparent that the father blames the mother equally. This was not challenged by Mr Woolfson. vi) Mr Woolfson concludes that there was “a marked deficit in relationship skills for both parents”. Beyond taking the account of the father at face value, it is not clear how Mr Woolfson arrives at this conclusion in circumstances where he had not seen or assessed the mother. It is again apparent that this view enabled the father to lay blame on the mother for the his behaviour.

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

[34]In responding to the appeal on behalf of the father, with respect to Ground 1 Ms Bennett relies on the decision of Lieven J in TRC v NS

[2024] EWHC 80

, in which the Lieven J stated as follows with respect to the process the court should undertake in deciding whether to direct a finding of fact hearing:

“[36] On the first point, it is clear from K v K, and indeed commonsense, that PD12J is not setting out a formal process that must be followed and evidenced in every case. To require a court to go through such a process would be highly onerous, and to a considerable degree a "tick-box" exercise. The duty on the court is to consider whether a fact find is necessary and proportionate, and to have regard to PD12J, including the matters in paragraph 5, and apply the relevant case law. The Appellant accepts that the Magistrates were advised both as to PD12J and K v K. Therefore the appeal cannot be based on them having failed to take the Guidance and law into account. This part of the Ground really comes down to a reasons challenge – did the Magistrates set out sufficient reasons to establish that they properly considered the issues? [37] It needs to be remembered that these cases arise in necessarily busy lists and to impose a complex duty to give reasons would significantly impede the administration of justice. It is important that the Magistrates set out sufficient reasons as to explain, in short terms, why they reached the decision they did. [38] In the present case, the Magistrates did this in the Recital set out above. They explained that in their view there was sufficient evidence before the Court, largely in the form of the transcripts of audio recordings and the witness statements, for the Cafcass Family Court Advisor ("FCA") to advise and for them to ultimately reach a decision on the children's welfare interests. In those circumstances it was neither necessary nor proportionate to have a separate fact finding hearing. In my view that is all they needed to explain.”

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

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

[37]With respect to Ground 3, Ms Bennett argues that it is plain from the judge’s ex tempore judgment that the judge considered the broad canvass of evidence in determining whether to hold a fact-finding hearing. Ms Bennett points to the fact that the judge had considerable evidence before him at the hearing and that, on the basis of that evidence, it was plainly open to the judge to conclude that there was a sufficient factual matrix upon which the court could proceed in circumstances where(a) the father had made the admissions, on which the judge was entitled to rely,

(b) the court accepted that the mother was vulnerable and that this needed to form part of the future risk assessment and

(c) the court had made directions for the mother to adduce medical evidence in respect of the potential impact of contact on her and CT.

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

[39]Relying on the decision of Cobb J (as he then was) in A v K (Appeal: Fact-Finding: PD12J)

[2024] EWHC 1981 (Fam)

, Ms Bennett submits that the judge was required to decide in respect of the allegations what was, and was not, actually relevant to the precise welfare issues which required adjudication in respect of CT. Ms Bennett submits that the decisions of the Court of Appeal in Re H-N and K v K make clear that the court has a wide discretion in determining whether a fact-finding hearing is appropriate.

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

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

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

RELEVANT LAW

[43]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”.

[44]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.”

[45]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”.

[46]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.

[47]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)

and K v K

and in the President’s Guidance Fact Finding Hearings and Domestic Abuse in Private Law Children Proceedings (5 May 2022).

[48]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: i) When the court is deciding whether it is necessary to conduct a fact-finding hearing with respect to allegations of domestic abuse, it should first consider the nature of the allegations and the extent to which they are likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms. The court must, in every case where fact-finding is being considered, take time to identify the welfare issues, to understand the nature of the allegations, and then to consider whether the facts alleged are relevant to those issues and whether it is, therefore, necessary for the factual dispute to be determined. ii) The court should have in mind the purpose of a fact-finding hearing, which in broad terms is to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children. iii) Consideration must be given to PD 12J, para 17 as to whether it is necessary to have a fact-finding hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and, importantly, the relevance to the issue before the court if the allegations are proved. iv) Under PD12J.17(h) the court has to consider whether a separate fact-finding hearing is 'necessary and proportionate'. The court and the parties should have in mind as part of its analysis both the overriding objective and the President's Guidance in “the Road Ahead”. v) A decision to hold a fact-finding hearing is a major judicial determination within the course of family proceedings. The process will inevitably introduce delay and postpone anything other than an interim determination of issues relating to the child's welfare, which is contrary to the statutorily identified general principle that any delay in resolving issues is likely to be prejudicial to a child's welfare. vi) It will not be appropriate or necessary for there to be a fact-finding hearing in every case where there is an allegation of, even very serious, domestic abuse.

[49]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.”

[50]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).”

[51]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).”

[52]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.

[53]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.” ‘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.’

[54]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.

DISCUSSION

[55]Having considered carefully the written and oral submissions in this appeal, I am satisfied that the appeal must be allowed. I am further satisfied that, having regard to the information available to this court, it is necessary and proportionate in this case for there to be a separate finding of fact hearing and I so direct. My reasons for so deciding are as follows.

[56]As I have noted, during the course of her submissions, Ms Bennett placed reliance on the decision of Lieven J in TRC v NS as authority for the proposition that PD 12J does not set out a formal process that must be followed, as a highly onerous “tick-box” exercise, in every case in which the question of the necessity of a separate finding of fact hearing arises. Ms Bennett submitted that the judge’s judgment should be evaluated in that context.

[57]As part of her submission that the court should not rely on the decision of TRC v NS, Ms Chokowry submitted that the approach adopted in TRC v NS to fact finding hearings in private law proceedings, particularly as articulated in paragraphs [45] to [47] of Lieven J’s judgment, is at odds with the decision of the House of Lords in Re B

[2005] UKHL 35

[2005] 2 AC 645

and the decisions of the Court of Appeal in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) and K v K:

“[45] This case is a good example of why separate facts finds will often be neither necessary, nor indeed helpful in a private law dispute such as this. There is a very strong overlap here between the “facts” and the welfare analysis of what is in the children’s best interests. The holding of separate fact finding hearings, and the concept of findings of fact being “binary” emerged from public law cases. In public law cases under Part IV of the Children Act 1989, it will often be necessary to make findings of fact before threshold is crossed, see (inter alia) Re H (Minors) (Sexual Abuse) 1996 AC 563. Threshold must be crossed before intervention by the public authority is lawful. [46] However, in private law there are no “threshold” findings and it may well be that issues of the factual matrix and welfare interests are closely bound up, and best considered together. The jurisdictional basis for private law orders are the considerations under s.1 of the Children Act 1989, and the welfare checklist. This encompasses matters of fact, but also welfare issues. It is both difficult, and often unhelpful to try to compartmentalise these matters. [47] In many private law cases with allegations of domestic abuse, where the court is focusing on the relevance of such allegations to the best interests of the children, it is much less clear that separating fact finding from welfare is a helpful way to proceed. The welfare checklist focuses the court in considering the case in a holistic manner. The neat categorisation of truth and untruth and hard binary facts, often sits uneasily with the reality of failed relationships. It may be much more useful for a court to consider the evidence, including that of the FCA, in a holistic way rather than trying to separate facts from welfare.”

[58]I am not bound by the decision of Lieven J in TRC v NS. With respect to Ms Bennett’s submission, the observations in TRC v NS relied on by Ms Bennett regarding the process to be adopted under PD 12J were obiter in circumstances where the issue on appeal in that case was whether the Magistrates had erred in vacating a fact finding hearing and not whether the approach the Magistrates had adopted with respect to the fact finding exercise itself was correct. In any event, the approach to PD12J in TRC v NS does not appear consistent with the decisions of the Court of Appeal in Re A (A child)

and Re H

, by which I am bound (neither of which appear to have been cited to Lieven J). Both of those decisions of the Court of Appeal characterise the approach set out in PD12J as obligatory.

[59]With respect to Ms Chokowry submission, and for what it is worth, in so far as Lieven J sought to suggest otherwise in TRC v NS,I agree that it is not helpful to seek to draw a distinction between the nature of the fact finding exercise in private law proceedings and that in public law proceedings. The burden of proof in all family proceedings lies on the party seeking to prove the fact asserted and the applicable standard of proof is the balance of probabilities. It follows from these principles that an asserted fact is either proved or it is not proved to the requisite standard by the person on whom the burden rests. The purpose of fact-finding in a case about children is foundational, i.e. to provide a sufficient factual basis for the welfare decisions that fall to be made by reference to s.1 of the Children Act 1989. Whilst in some cases a separate finding of fact hearing may be necessary, in very many cases the fact finding process and the welfare evaluation based on the facts found can be encompassed in a single hearing. However, in circumstances where the findings of fact made by the court provide the foundation of the welfare evaluation, to conflate fact finding and welfare evaluation in private law proceedings as elements of a broadly defined “holistic” process seems to me to risk introducing confusion by depriving the parties of the legal and procedural certainty inherent in the well established civil law approach of finding the facts, applying the relevant law to the facts found and, thereby, arriving at the case specific answer.

[60]I am not able to accept respondent’s submission that the court should approach this appeal based on the decision in TRC v NS. For the avoidance of doubt, in determining this appeal I have applied the principles set out in PD12J, in the Court of Appeal’s decisions in Re A (A child) and Re H, Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) and K v K. As to the nature of findings of fact in family proceedings, I have borne in mind the decision of the House of Lords in Re B:

“Where a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one.”

Grounds 1 to 4

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

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

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

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

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

[65]In the foregoing context, in order for the parties to understand why they have won or lost on the case management issue in dispute in this case, and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable ,it should be apparent from the judgment that the judge has addressed, in short but sufficient detail, three questions: i) What are the identified welfare issues? ii) What is the nature of the disputed allegations? iii) Are the matters alleged relevant to the welfare issues such that it is necessary and proportionate, having regard to the purpose of a fact finding hearing as the basis of assessment of risk and the impact of the alleged abuse on the child, the impact of delay and whether there is other evidence providing a sufficient factual foundation, for the allegations to be determined?

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

[67]In this case, all parties accepted that the CT and the mother experienced domestic abuse perpetrated by the father. Whilst the father admitted as much, the mother contended the abuse went much further than he admitted. As set out above, PD 12J paragraphs 35 to 37 articulate the principles that assist in identifying the welfare issues in cases in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse. Within this context, it is apparent that the welfare issues in this case encompassed: i) The effect of the domestic abuse on CT, on the arrangements for where she is living and its effect on the her relationship with her parents. ii) The nature and extent of any future risk to CT arising from the father’s alleged abusive conduct. iii) The impact on the mother’s mental health of her experience of the father’s alleged abuse and its consequential impact on her ability to care for CT in the context of any ongoing paternal contact (in circumstances where children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents). iv) Whether the father is motivated by a desire to promote the best interests of CT or is using the process to continue a form of domestic abuse against the mother. v) The likely behaviour during contact of father and its effect on CT. vi) The capacity of the father and the mother to appreciate the effect of past domestic abuse and the potential for future domestic abuse. vii) Whether the physical and emotional safety of CT and the mother can, as far as possible, be secured before, during and after contact.

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

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

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

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

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

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

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

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

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

[76]Further, when the conclusions in the judgment are read with the terms of the sealed order, a number of contradictions emerge. On the face of the order the court was satisfied that(a) the allegations of domestic abuse were likely to be relevant to any decision of the court relating to the welfare of the child having regard to PD 12J,

(b) directed Cafcass provide a risk assessment based on the mother’s concerns about the father’s domestic abuse and

(c) considered the mother’s diagnosis of PTSD to be forensically relevant to the issues before the court. However, the court also concluded in this context that a finding of fact hearing to determine the allegations of domestic abuse was unnecessary to decide the welfare issues in the case, to permit Cafcass to undertake a fully informed risk assessment and to determine the significance of otherwise of the mother’s mental health difficulties.

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

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

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

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

[81]As I have set out above, having regard to the guidance set out in PD12J, the welfare issues that court is required to examine in this case can be identified as follows: i) The effect of the admitted and alleged domestic abuse on CT, on the arrangements for where she is living and its effect on her relationship with her parents. ii) The nature and extent of any future risk to CT arising from the father’s alleged abusive conduct. iii) The impact on the mother’s mental health of her experience of the father’s alleged abuse and it consequential impact on her ability to care for CT in the context of ongoing paternal contact (in circumstances where children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents). iv) Whether the father is motivated by a desire to promote the best interests of CT or is using the process to continue a form of domestic abuse against the mother. v) The likely behaviour during contact of father and its effect on CT. vi) The capacity of the father and the mother to appreciate the effect of past domestic abuse and the potential for future domestic abuse. vii) Whether the physical and emotional safety of CT and the mother can, as far as possible, be secured before, during and after contact.

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

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

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

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

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

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

CONCLUSION

[88]For the reasons I have given, I am satisfied that the mother’s appeal must be allowed on Grounds 1, 3 and 4. I dismiss Ground 2 and 5. I am further satisfied that a finding of fact hearing is necessary in this case to determine the allegations made by the mother. In the circumstances, I shall remit the matter for a finding of fact hearing before a different Circuit judge.