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

This case concerns an appeal by a Mother (“M”) against a case management decision not to direct a fact-finding hearing.

The proceedings concerned the Father’s (“F”) application for a child arrangements order to spend time with the parties’ daughter, CT born in 2023. The case management decision took place following the parties’ having produced witness statements and a schedule of allegations. Within her evidence, the M raised very serious allegations against the F which included:-

1. Between 2005 – 2023 the F suffered from a number of psychotic episodes and was sectioned under the MHA 1983. When these reoccurred, the F’s mother told the M not to seek medication attention as the F would again be sectioned.
2. From 2007 the M became aware that the F was habitually using cocaine.
3. In 2013, the F tricked the M into getting into his van believing he was giving her a lift to work. The F called the M’s employer without the M’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.
4. In 2013 and 2014 the F was consuming alcohol to excess, resulting in him becoming abusive to the M.
5. In June/July 2014 the F was possessive of the M, calling her several times a day to see what she was doing and accusing her of cheating.
6. In July/July 2014 the F accused the M of having an affair with a work colleague and contacted the work colleague’s partner to accuse him and the M of having an affair.
7. In 2015 / 2016 the F deflated the tyres on M’s car and in a jealous rage, pinned a chair against the M’s throat.
8. In 2015 / 2016, the F pinned the M against a wall with great force and put a knife to her neck, causing bruising.
9. In 2016 the F was dealing in cocaine.
10. On 21 November 2016 the F was verbally abusive to the M following an argument about cleaning the kitchen.
11. On 28 November 2016 the F threw two cups of water at the M
12. On 23 December 2016, the F forcefully slapped the M, causing red swelling across her face and neck and threw three pints of water over the M
13. In 2017 the F relapsed whilst on a 12-step programme and began using cannabis, cocaine, crack cocaine and alcohol again 
14. On 2 June 2017 the F verbally abused the M after she opened a second sachet of cat food and later verbally abused her after she had let the soup boil
15. On 6 June 2017 the F verbally abused the M by shouting at her “answer the question you cunt. I feel like spitting on you right now”. The F demanded that the M go to the bedroom and not speak to him, which she did
16. On 28 June 2017 the F physically assaulted the M causing bruising and threatened her that she was “lucky to be alive” and that he was “going to put a knife in you”. The F picked up a work tool and threatened the M that he “would smash it across your feet”. The F then placed his hands over the M’s mouth preventing her from breathing.
17. On 28 February 2022 the F refused to allow the M to inform friends and family that she was pregnant and shouted and swore at the M, leaving her feeling isolated.
18. On 28 February 2022 the F began arguing with the M. He verbally abused her before pushing the door against her foot with force, causing injury.
19. On 15 March 2022 the F refused to accompany the M to a scan after she suffered spotting and showed no sympathy or concern when she was told she would likely miscarry.
20. On 16 March 2022 the F informed the M that “you’ve only got yourself to blame” when she started bleeding heavily and called the F for support, left her to drive herself to hospital whilst having a miscarriage and blocked her calls and messages.
21. Thereafter on 18 March 2022 the F accused the M of having an abortion.
22. On 3 April 2022, 7 April 2022 and 19 April 2022 the F again accused the M of having an abortion and demanded to see her medical records.
23. In October 2022 the F verbally abused the M 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.
24. On 12 March 2023 the F threatened the M with a demand for shared custody whilst the M was heavily pregnant.
25. On 20 March 2023 the F demanded that the name of the unborn child would be T and informed the M there would be no compromise, negotiation or discussion on the subject
26. Following CT’s birth, between [a date] 2023 and 25 March 2023, the F accused the M of being negligent and risking harm to CT, causing the M to feel inadequate and embarrassed before nursing staff and midwives.
27. On 5 April 2023 the F smacked the M’s leg whilst holding CT
28. On 8 April 2023 the F left the M to care for CT unsupported for 2 weeks after her birth
29. On 19 April 2023 the F drove erratically with the M and CT in the car, risking significant harm to them both
30. On 10 May 2023 the F was verbally abusive towards the M, calling her “scummy”, questioning her parenting and calling her a “cunt”, a “snake”, a “fuck” and raising his voice.
31. On 27 May 2023 the F was again verbally abusive towards the M calling her a “cunt” and “disgusting and disrespectful”
32. On 26 June 2023 the F was again verbally abusive to the M at her father’s house calling her a “bike”, “selfish” and a “controlling bitch”
33. On 31 October 2023 the F took a picture of the M without her consent whilst she was breastfeeding CT.

The F made some admissions albeit the Court noted that it was difficult to ascertain which admissions related to which allegation, these having only been recorded as recitals on the face of the order from the case management hearing. These admissions were as follows:-

1. F was diagnosed with a drug induced psychosis in 2001 when he was 19 years old. He was admitted to hospital but not sectioned.
2. The F smoked cannabis daily in his late teens
3. Between 2006 and 2007 the F used cocaine, but did so only occasionally and recreationally, most often on weekends
4. The F’s cocaine use increased in 2011 and he sometimes used it once per week
5. On one occasion “years ago before CT’s birth” the F went through the M’s work emails on her phone and forwarded selected emails to his own email address
6. In 2017 the F recognised he had a substance misuse problem with respect to both drugs and alcohol and started to take steps to manage these issues
7. The F relapsed between 31 December 2017 and 6 January 2018. By 2021 the F was drinking alcohol and smoking cannabis daily
8. On one occasion before CT was born the F told the M to get out of bed and go to her father’s house following an argument. The M “chose” to sleep in the hallway
9. In March 2022 the F accused the M of having an abortion (later texting the M to apologise and say it was not her fault) encouraged the M to lodge a complaint with the hospital (the hospital later “admitting they made a mistake in the process”), asked the M 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 M multiple messages with medical information and was very distressed and upset for both himself and the M as a result of the miscarriage and took it out on the M
10. The F used substances occasionally in October 2022
11. Following CT’s birth he and the M argued on the ward and he overreacted when the M fell asleep with CT in her arms
12. In April 2023 the F took a picture of the M holding CT as he was concerned the M was holding her too tightly and she was struggling to breathe
13. In June 2023 the F called the M a “controlling bitch” in the context of an argument and feeling under pressure from the M to sell his flat.

At the case management hearing, the Court heard submissions and determined that a fact-finding hearing was not necessary or proportionate. The Judge gave a number of reasons for this decision, in short that F had made certain admissions in relation to some of the allegations and it was clear that M was a vulnerable person in relation to F and this would need to be considered as part of the welfare analysis, that none of what the Judge characterised as the serious allegations post-dated the birth of CT, following CT’s birth there was a period during which F had contact and separation post-dated birth by 3 months (including M and F taking CT swimming and meeting in the community without difficulty), that F had sufficiently addressed his substance misuse and anger management issues by completing an anger management course and that directing a fact-finding hearing would cause undesirable delay in the proceedings.

The M appealed this decision together with a decision to order interim indirect contact and her grounds of appeal were as follows:-

1. The judge failed to give adequate reasons for dismissing the mother’s application for a fact finding hearing
2. The judge was wrong in failing to specifically address PD12J in light of the disputed allegations of domestic abuse
3. The judge failed to conduct an analysis of the evidence and/or gave undue weight to some of the evidence
4. The judge was wrong to place reliance on the course completed by the father with ‘Anger Plant’
5. The judge failed to consider PD12J before making an order for indirect contact.

The matter came before Mr Justice Macdonald on appeal. Firstly, in respect of the appeal concerning indirect contact, this was dismissed on the basis that this had been proposed by the M at the time and it being reasonable to take from that, this was a level of contact and in a form that the M could cope with. There were significant safeguards in the context of the disputed allegations, the contact being readily monitored and controlled, the F having been ordered to provide videos to a link shared with M’s solicitors and it being anticipated that a third party would show CT the videos rather than M herself. In light of this, the Court did not consider that simply because PD12J was not explicitly referred to within the ex tempore judgment, that PD12J hadn’t been considered.

With regards to the issue of the need for a fact-finding hearing, the M’s appeal on grounds 1, 3 and 4 was allowed. In reaching this decision, the Court helpfully summarises the applicable law with regards to determining the need for a fact-finding hearing at paragraphs 45-54. Furthermore, Macdonald J went on to consider that the Judge should have considered 3 questions in short but sufficient detail as follows:-

1. What are the identified welfare concerns?
2. What is the nature of the disputed allegations?
3. 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?

The Court of Appeal determined that it was apparent that the welfare issues encompassed:-

1. The effect of the domestic abuse on CT, on the arrangements for where she is living and its effect on her relationship with her parents;
2. The nature and extent of any future risk to CT arising from the F’s alleged abusive conduct;
3. The impact on the M’s mental health of her experience of the F’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)
4. Where the F 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 M
5. The likely behaviour during contact of F and its effect on CT
6. The capacity of the F and the M to appreciate the effect of past domestic abuse and the potential for future domestic abuse
7. Whether the physical and emotional safety of CT and the M can, as far as possible, be secure before, during and after contact.

Macdonald J went on to consider that beyond describing the facts in issue as “serious allegations she has raised against F in relation to physical abuse”, the judgment did not examine the nature of the disputed allegations. For example, there was no description or consideration of other types of abuse alleged such as that of coercive and controlling behaviour, in particular this was alleged to be longstanding and repetitive.

The Court determined that the impact of the failure to identify nor analyse the nature of the allegations, was then exacerbated by a number of additional matters. Firstly, the Judge’s reliance on F’s limited admissions and reliance on the older allegations made by the M being “irrelevant” and no serious allegations postdating CT’s birth. The Court of Appeal held that the judge had omitted to consider the wider context of the M’s allegations and whether determining the more wide ranging and serious allegations made by the M (which the F did not admit, admitted only partially or asserted he could not remember) might establish a much greater longitudinal pattern of abusive and coercive controlling behaviour including persistent emotional and verbal abuse that would impact on the assessment of risk. Macdonald J remarked that there was a “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”. In addition, the fact that some of the allegations made by the M predated the birth of CT and extended over a significant period of time, the Court emphasised did not render those allegations irrelevant, on the contrary, the longitudinal nature of the allegations, if established, would be highly relevant to the assessment of risk.

Secondly, the Court of Appeal determined that 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 misplaced. In considering the report from ‘Anger Planet’, the Court considered the Cafcass Domestic Abuse Practice Guidance which emphases that “anger management courses are not an appropriate intervention for perpetrators of domestic abuse”. Furthermore, whilst the report itself did have some positives regarding F’s engagement, it did also raise a number of number of concerns regarding the extent to which the F acknowledges his past conduct, especially when viewed in the context of his claim not to recall a number of serious incidents of abuse and tendency to deflect blame again onto the M. Macdonald J observed that only by determining which parent’s account is more likely to be true could the court then decide whether F has fully acknowledged his conduct and recognised the impact of his behaviour moving forward, or that he minimises his abusive conduct and this presents a risk of further domestic abuse and coercive and controlling behaviour in the context of that lack of acknowledgment and recognition. 

The Court of Appeal also noted contradictions when comparing the sealed order from the hearing and the judgment. For example, the judge determined that a fact finding hearing was not necessary but on the face of the order, it recited that 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 PD12J. Furthermore, the order directed Cafcass to complete a Section 7 Report and specifically asked Cafcass to provide a risk assessment based on the M’s concerns about the F’s domestic abuse and the M’s diagnosis of PTSD to be forensically relevant to the issues before the court.

On the issue of directing a Section 7 Report without the factual matrix having been determined, the Court of Appeal observed that the judge in effect, had left the question of the treatment of the remaining disputed facts to be grappled with by the FCA and that this would be obviously problematic. Helpfully, Macdonald J posed a number of rhetorical questions to consider the impact of this decision such as, How is the FCA meant to deal with, for example, the allegations of serious physical abuse and threats to kill made by the F? Is the Cafcass Officer permitted to go beyond the F’s admissions or does he or she have to treat the M’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 M’s case at its highest and assess risk in that context or determine the individual allegations?

The Court of Appeal therefore allowed the M’s appeal on grounds 1, 3 and 4, determined that a fact finding hearing was necessary and proportionate in order to provide a sufficient factual foundation for the welfare decisions under s.1 of the Children Act 1989.

This case provides a helpful reminder to practitioners both in respect of the applicable law when considering the need for a fact finding hearing but also the approach that should be taken, especially in cases whereby there have been some admissions made and/or a parent has completed intervention/work to address behaviours and the Court needing to consider whether such provides a sufficient factual basis on which an assessment of risk to determine welfare decisions can be undertaken.