Appeal allowed as participation directions not considered for vulnerable party

The Courts and Tribunals Judiciary have published the judgment of Her Honour Judge Nott from the Family Court at Reading in the case M v S, which took place on 13 March 2023. This case serves as an important reminder for all family practitioners to consider the crucial participation directions for victims of domestic abuse.


This was an appeal of a Child Arrangements Order  (“CAO”) that was made with the apparent agreement of the parties by a district judge sitting in private in the Oxford Family Court. A fact-finding hearing had taken place in which it was established that the Mother had been the victim of domestic abuse perpetrated by the Father after the child’s birth and that the domestic abuse involved physical abuse, emotional abuse, elements of controlling and coercive behaviour, and incidents of rape on more than one occasion, including post-separation and after contact with the child.

The CAO directing contact did not refer to Practice Direction 12J, nor was there any mention of Part 3A FPR or Practice Direction 3AA in either the body of the order or in any recital. The transcript confirmed Mother’s contention that there was no mention of any measures to aid her participation in that or in future hearings.

The judge determined that the supervised contact between Father and the child (that Mother was contending for) was not appropriate and, having made that determination, required Mother to work out with Father during an adjourned break, how contact would be implemented. No consideration was given to special measures for Mother.


HHJ Nott held that the court must assume that both the quality of evidence of a victim of domestic abuse and their ability to participate in proceedings are likely to be diminished by reason of vulnerability. This assumption needs to be recognised and addressed, and it needs to be addressed right at the outset.

Neither Mother's advocate nor the district judge made any reference to the need to consider how best Mother, a victim of domestic abuse, might participate in proceedings brought by the perpetrator of that abuse, concerning their son, who witnessed some of that abuse and is therefore himself a victim of that abuse.

By his failure to apply PD12J, the judge fell into error when considering the substantive issue of whether, when and how contact between the child and his Father should be directed. The consent order could not properly be described as a consent order. Mother did not give a free and informed consent to contact going ahead in the way in which it is set out in the Order.

Due to child’s wishes and the complex nature of the serious findings, the judge chose to make the child a party pursuant to s.16(2) FPR and appointed a children's guardian pursuant to 16(4) for a directions hearing.


HHJ Nott noted that fact that Rule 3A was not taken into account and participation directions were not considered, would in and of itself be enough to set aside the Child Arrangements Order on the ground that there was a material irregularity in the conduct of the hearing.

A similar appeal went to the High Court in CM v IP [2022] EWHC 2755 (Fam), where the mother's appeal was allowed in proceedings under section 8 of the Children Act 1989 because the judge failed to consider participation directions to assist her to give her best evidence.

This highlights the necessity for legal representatives and the court to be alive to and always considering Practice Direction 12J, Part 3A FPR and Practice Direction 3AA. Their mandatory nature is underlined by section 63 of the Domestic Abuse Act 2021 which provides the statutory basis for Rule 3A.2A.

This judgment also comes at a time when new Practice Direction 27C came into force on 6 April 2023 relating to the attendance at any court hearing of independent domestic violence advisers/independent sexual violence advisers as support to litigants at all levels of the Family Court. This is an additional consideration for measures that can aid a domestic abuse victims’ ability to participate and properly articulate and advance their position.

For the judgment, please see: