Fact-finding hearings in private law children cases

Domestic abuse allegations

• Many of the cases concerning arrangements for children post family breakdown will involve allegations of abuse between the parents, figures for the period 2019/2020 suggesting 40%.  

• Such abuse allegations will often be linked to concerns about drug or alcohol misuse, so that the court will often direct that a party undertake specialist testing by a reputable agency. 

• The behaviour may not reach the criminal standard but may nonetheless be deemed abusive. 

• The General Principles set out the clear understanding that children who suffer, or experience domestic abuse are harmed by it. 

• The court must therefore consider, at all stages of private law proceedings, whether domestic abuse is raised as an issue, identify the issues involved, consider the nature of the allegations and “the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and if so in what terms”. 

• There is a presumption in favour of a child spending time with both parents, subject to a caveat to protect the child from harm, or the risk of harm.

• Where the court considers that “findings” are required on the allegations, it will list a fact-finding hearing. 

• Where findings (or admissions) are made, the court should only make an order for contact if it is satisfied that the child can be safeguarded and will not be subjected to further domestic abuse. 

• Allegations of abuse may relate to a specific incident, or a pattern of behaviour, such as an allegation of coercive and controlling behaviour. The Supreme Court case of Re H-N stated that the court should be concerned with how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not come within the definition of rape, murder, manslaughter or other serious crimes. 

• There will be cases where the court may consider the risk of harm to the child is such that there will be no contact (direct or indirect), and potentially even the removal or restriction of the exercise of parental responsibility. Readers are referred to the following: ‘A Disagreeable Truth’: When a parent has ‘nothing to offer’ | Hill Dickinson

• The court may also consider it necessary to impose a s91(14) restriction, so that either one or both parties is unable to make an application concerning the children without obtaining the prior leave of the court. S91(14) Orders, and the Family Court: Preventing ‘Lawfare’ in Children Act Proceedings | Hill Dickinson

Re O, and the obligation to keep abuse allegations under continuous review

In the reported case Re O (O (Appeal; Duty to Consider Fact-Find), Re - Find Case Law - The National Archives), the Mother brought an appeal against the judgment of a lower court. 

The court had made a child arrangements order in respect of a 9- and 12-year-old. The children were living with their Mother (the appellant). The Father (respondent) was having supervised contact with the younger child. The older child did not wish to attend contact. The court heard evidence from the parents and Cafcass officer, and made an order providing for:

• Contact with the youngest child to progress from supervised, to unsupervised into the community, to visits to the father’s home and then overnight contact.

• An order was made in respect of the older child, but the order did record that they need only attend contact if they wished to do so. No further information is given in the appeal judgment, but it can be inferred that the older child had expressed a clear wish not to have contact, such that the court did not feel it would be in their best interests (or in fact workable) to make an order requiring compliance. 

The Mother appealed based on 5 grounds:

Ground 1: It was a procedural irregularity not to hold a ‘ground rules’ hearing prior to the final hearing.

Ground 2: The judge was wrong in failing to implement participatory directions and to ensure that during the hearing the parties did not see each other to assist the mother, a vulnerable party and victim to give her best evidence pursuant to the Domestic Abuse Act 2021 and Part 3 FPR 2010 and PD3AA.

Ground 3: The judge failed to specifically address Part 3 FPR 2010 and PD3AA, which includes an obligation on the court to consider mother’s vulnerabilities and how she could be assisted to give her best evidence.

Ground 4: The judge was wrong in failing to determine the mother’s wider allegations of domestic abuse and coercive and controlling behaviour which were relevant to the welfare decisions for the children.

Ground 5: The judge was wrong in making child arrangements orders without applying PD12J given the father’s admission that he threatened to slit the mother’s throat in front of the children and mother’s wider allegations of domestic abuse and coercive and controlling behaviour.

Both parties in fact agreed that the appeal ought to be allowed based on the (fairly straightforward) grounds 1 -3, however there was no agreement in respect of grounds 4 and 5. 

The Mother’s Case 

The Mother argued:

• She did in fact want to pursue findings beyond an admitted threat to “slit her throat”

• She denied withdrawing her other allegations

• Without a fact-finding hearing, the judge could not have considered or analysed risk

• The father emotionally manipulated the children in contact – this was part of a wider pattern of coercive and controlling behaviour 

• The judge had wrongfully downplayed the seriousness of the threat.

The Father’s Case

The Father argued:

• It was unclear what was meant by wider allegations

• The courts had already determined what allegations it was necessary to determine – the mother had produced a second schedule of allegations, without the permission of the court, including the same allegations already considered

• The mother had had her opportunity to pursue the allegations had not done so – it was too late now and disingenuous to criticise the judge for failing to direct a fact-finding hearing in the circumstances. 

The Court’s Findings

• Ground 4: The court found that the judge should have considered whether to make findings in relation to coercive and controlling behaviours alleged – he should not have relied on the decisions of prior courts nor the admission made but should have “kept the matter under continuous review”. 

• Even though no further application had been made for a fact finding on behalf of the mother, there was an ongoing obligation on the judge to consider the matter. 

• The judge had erred in stating that he would not be making findings but simultaneously referencing a “toxic” parental relationship – thus implicitly making findings of fault on both sides. 

• The judge did not consider the allegations of inappropriate behaviour by the respondent in contact in the context of allegations made about controlling behaviour in the past.  He did not consider whether the allegations of past behaviour were relevant or established a pattern of behaviour relevant to welfare. 

• The appeal court did not rule that the judge should have ordered a fact-finding hearing, only that he was wrong not to consider whether it was necessary. 

• It was not necessary for the judge to determine the allegations before such consideration. 

• The appeal was therefore allowed based on agreed grounds 1 – 3, and grounds 4 and 5 in part.