Shall We Fact Find?

1.  The decision as to whether to seek a finding of fact hearing in some private law cases can be difficult, so the judgment of MacDonald J in ER v NT (Need for fact-finding hearing) [2025] EWHC 2146 (Fam) is a useful reminder of the correct approach to be applied and the factors to be taken into consideration by the parties and the court.

2.  In this case, the parties commenced their relationship in 2002 and commenced co-habiting in 2005.  NT (“the father”) sought a child arrangements order providing for him to spend time with his daughter, CT, born on 22 March 2023. 

3. It was ER’s (“the mother”)’s case 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, she raised the following allegations:

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.

4.  On 14 February 2025, following the parties having produced witness statements and a schedule of allegations, HHJ Godwin (“the Judge”) dismissed an application for a finding of fact hearing into allegations of domestic abuse and coercive and controlling behaviour made by the mother ER (“the mother”), against the father.   The father by this stage had made some admissions – although the court observed that it was hard to work out which admissions related to which of mother’s allegations as they had been recorded on the face of an order rather than having been set out in a schedule so that the link between the allegation and the admission was obvious.

5.  The father’s admissions were as follows:

a. 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.

b. The father smoked cannabis daily in his late teens

c. Between 2006 and 2007 the father used cocaine, but did so only occasionally and recreationally, most often on weekends

d. The father’s cocaine use increased in 2011, and he sometimes used it once per week

e. On one occasion “years ago 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

f. In 2017 the father recognised he had a substance misuse problem with respect to both drugs and alcohol and started to take steps to manage these issues

g. The father relapsed between 31 December 2017 and 6 January 2018. By 2021 the father was drinking alcohol and smoking cannabis daily

h. 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

i. 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

j. The father used substances occasionally in October 2022

k. 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

l. 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

m. 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.

6.  At the case management hearing, the Court heard submissions and determined that a fact-finding hearing was not necessary or proportionate. 

7.  The Judge gave a number of reasons for this decision, in summary that the father had made certain admissions in relation to some of the allegations and it was clear that the mother was a vulnerable person in relation to the father and this would need to be considered as part of the welfare analysis, that none of what the Judge characterised as the serious allegations postdated the birth of CT, following CT’s birth there was a period during which the father had contact and separation post-dated birth by 3 months (including the mother and the father taking CT swimming and meeting in the community without difficulty), that the father 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.

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

a. The judge failed to give adequate reasons for dismissing the mother’s application for a fact finding hearing

b. The judge was wrong in failing to specifically address PD12J in light of the disputed allegations of domestic abuse

c. The judge failed to conduct an analysis of the evidence and/or gave undue weight to some of the evidence

d. The judge was wrong to place reliance on the course completed by the father with ‘Anger Plant’

e. The judge failed to consider PD12J before making an order for indirect contact.

8. The matter came before MacDonald J on appeal.  He dismissed the appeal against indirect contact on the basis that the mother had proposed this contact and so it could reasonably be taken from that offer that this was a level and nature of contact that the mother could live with. There were significant safeguards in the context of the disputed allegations, with contact being 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 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.

9.  With regards to the need for a fact-finding hearing, MacDonald J allowed the mother’s appeal on Grounds 1, 3 and 4.  At paragraphs 45-54 of the judgment, he usefully summarises the relevant law to be applied when determining the need for a fact-finding hearing. 

10.  At paragraph 65, he states:

“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?”

10.  At paragraphs 67-68 Macdonald J states:

“67.  In this case, all parties accepted that 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 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. 

1. 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.”

11. 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 the other types of abuse alleged by the mother, such as that of coercive and controlling behaviour, in particular this was alleged to be longstanding and repetitive.

12.  The Court determined that the impact of the Judge’s failure to identify or analyse the nature of the allegations was exacerbated by several additional matters.  Firstly:

“ 71. … 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.” 

I have added emphasis to this paragraph – in addition to MacDonald J’s – because it so effectively demonstrates how ‘older’ allegations or those that remain in dispute despite admissions being made about other allegations are often key allegations that can serve to really put evidential flesh on the forensic bones and give the court a proper and accurate picture of what the parent and sometimes subject child have experienced.

13. Further, Macdonald J 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 emphasises at page 44 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."

14.  Additionally, whilst the report itself did have some positives regarding the father’s engagement, it also raised several concerns including the extent to which the father does acknowledge his past conduct, especially when viewed in the context of his claim not to recall several serious incidents of abuse and tendency to deflect blame again onto the mother.  Macdonald J observed that only by determining which parent’s account is more likely to be true could the court then decide whether the father 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.

14.  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 mother’s concerns about the father’s domestic abuse and considered the mother’s diagnosis of PTSD to be forensically relevant to the issues before the court.  This is a salutary lesson to check orders, including any recitals, thoroughly.

15.  On directing a Section 7 Report in the absence of a determined factual matrix, MacDonald J observed that the Judge in effect, had left the question of the treatment of the remaining disputed facts to be grappled with by the Family Court Adviser and that this would obviously be problematic. Helpfully, Macdonald J at paragraph 77 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 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? 

16. This case reminds us that just because some admissions have been made, it does not mean that others should not be determined.  In cases involving a lengthy history of allegations, careful thought must be given to whether older allegations serve to properly illustrate the chronic nature of the abuse that has taken place.  If so, they should be pursued. 

17. Any findings made by the court inform the welfare analysis for the child.  It is vital that the ambit of findings sought properly reflects the nature and extent of the harm suffered to ensure that the court can carry out its role most effectively.