V (A Child), Re

A fact-finding judgment must give a short but clear explanation of the decisive factors and the reasons for preferring one witness’s evidence. Merely reciting evidence and announcing conclusions is insufficient.

Before directing a hearing into alleged domestic abuse, the court must consider whether the allegations, if proved, would be relevant to the child’s welfare and whether a separate fact-finding hearing would be necessary and proportionate. Proof of domestic abuse creates no presumption against contact. The court must assess its nature, effect on the child and significance for future arrangements.

The father appealed from findings made by His Honour Judge Wulwik in private law proceedings concerning his young son. The judge found most of the mother’s allegations of domestic abuse proved after summarising the evidence but gave little explanation for preferring her account. An addendum requested during the permission process stated that the mother and her witnesses were more credible, but did not explain why.

The findings had contributed to a stalemate in which the father declined domestic violence intervention, while CAFCASS advised against face-to-face contact. The appeal concerned whether the reasons were adequate and, if not, what further fact-finding was relevant, necessary and proportionate to deciding the child’s future contact.

1. The appeal was allowed unanimously. The findings of fact were set aside and the proceedings remitted to the Family Court in Essex for allocation by the designated family judge to a fresh judge.

2. A fact-finding judgment need not contain an elaborate analysis of every evidential point. It must nevertheless identify the key factors and explain the reasoning supporting each material conclusion. Where credibility is central, the judge should ordinarily give a short appraisal of the witnesses and explain why one account is preferred. That requirement followed Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605.

3. The first-instance judgment recited the competing evidence and announced what the judge accepted. It did not explain how significant inconsistencies were resolved or how the mother’s dyslexia affected the assessment. The addendum similarly stated conclusions about credibility without supplying the missing reasoning. The parties and the appellate court should not have to conjecture about the judge’s thought process.

4. The fresh judge must decide which allegations, if any, require rehearing. Under Family Procedure Rules 2010, Practice Direction 12J, the court must examine whether alleged domestic abuse is relevant to the child’s welfare and whether separate fact-finding is necessary and proportionate. Re L, Re V, Re M, Re H [2000] 2 FLR 334 requires a balanced assessment of the benefits and possible detriments of contact. Domestic abuse does not generate an automatic bar or presumption against contact.

5. The fresh judge should take control of the proceedings, determine the relevant issues and consider whether contact should be attempted in controlled and safe circumstances. A CAFCASS officer cannot dictate the progress of the case. Where contact has been ordered, disagreement with the order requires the court to be approached for a variation rather than the order simply remaining unimplemented.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The findings were set aside and the proceedings remitted to the Family Court in Essex for allocation to a fresh judge: [2015] EWCA Civ 274.
2. Family Court at Romford: His Honour Judge Wulwik found most of the mother’s allegations proved on 13 May 2014. Following a request for clarification during the permission process, he supplied an addendum dated 1 September 2014.