J (DV Facts)

In private-law child-arrangements proceedings involving disputed allegations of domestic abuse, the court must identify and, where necessary, resolve the factual issues promptly. A fact-finding hearing should not be deferred to obtain a welfare report where the dispute is so polarised that welfare cannot be assessed without deciding whether the alleged abuse or alleged alienation occurred.

The court must also consider the statutory presumption favouring parental involvement, the risks of harm, and the positive duty to pursue all realistic forms of contact. Contact should be stopped only as a last resort. A contested without-notice injunction preventing communication with children requires an urgent on-notice hearing. There can be no blanket refusal of rights of audience to a McKenzie Friend, although advocacy at a sensitive fact-finding hearing will be exceptional.

Following the parents’ separation, the mother obtained a without-notice non-molestation order under Part 4 of the Family Law Act 1996. The father denied serious allegations of domestic abuse and sought child-arrangements orders for all three children.

The Manchester County and Family Court did not conduct a fact-finding hearing. It later made no order for direct contact with the eldest child and provided only limited indirect contact with the youngest. The father appealed, challenging the delay and failure to determine the facts, the refusal of advocacy rights for his McKenzie Friend, and the failure to use the court’s powers to promote contact. The central questions concerned the necessity of timely fact-finding and the appropriate order after the procedural error had occurred.

1. Appeal allowed on Grounds A and C. The court held that a fact-finding hearing should have taken place in 2015. The mother had made serious and specific allegations, including marital rape, which the father denied. The competing cases were fundamentally polarised: sustained domestic abuse on the mother’s case, and fabrication and parental alienation on the father’s case.
2. Under the current version of Family Procedure Rules 2010, PD12J, and the long-standing principles governing delay and parental involvement under the Children Act 1989, the court must identify relevant factual issues early and give directions for their fair and prompt determination. It was wrong in principle to adjourn the necessary fact-finding hearing to await a welfare report. In a dispute of this nature, the report could not be properly informed without resolving, so far as possible, whether the children had experienced domestic abuse or had been alienated from a loving parent.
3. The father was also justified in complaining that the without-notice injunction, which prevented all communication with the children, ran for more than 18 months without a contested determination of the allegations. The applicable guidance required an urgent on-notice hearing. The 2017 guidance confirmed that such orders require a fixed expiry date and should normally be short, with a return hearing within 14 days.
4. Ground B was only partly established. The McKenzie Friend guidance did not support a blanket policy against any rights of audience. Each application had to be considered on its facts, and rights could be granted for a particular hearing or discrete task. Nevertheless, full advocacy by a McKenzie Friend to cross-examine key witnesses in a sensitive domestic-abuse fact-finding hearing would be extremely rare. The refusal of that application was therefore not shown to be wrong, unless it rested on an impermissible blanket policy.
5. The family court had a positive duty to pursue all realistic alternatives to promote or restore contact, but welfare remained paramount. Despite the procedural error, the appeal court considered that the passage of time, the children’s ages and their consistently strong opposition to contact made a rehearing contrary to their welfare. Under Civil Procedure Rules 1998, r 52.20(2), the court therefore allowed the appeal but affirmed the July 2016 order without alteration.

• Court of Appeal (Civil Division): Appeal allowed on Grounds A and C. The court held that a timely fact-finding hearing had been necessary, but affirmed the existing contact order because a rehearing was by then too late and contrary to the children’s welfare.
• Manchester County and Family Court: HHJ Allweis declined to hold a fact-finding hearing, made no order for direct contact with B, and made limited provision for indirect contact with C.