H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) (Rev 2)

Fact-finding in private law children proceedings must serve the determination of child welfare issues. Allegations of domestic abuse require a separate hearing only where this is necessary and proportionate. Courts must assess relevant patterns of coercive or controlling behaviour cumulatively, including their impact on the parent and child. Separation and the absence of physical injury do not establish that future risk has ended. A victim need not be blameless. Criminal offence definitions should not govern family fact-finding, which applies the civil standard of proof. Serious procedural irregularity can invalidate a consent order. An academic appeal challenging findings without seeking a change to the substantive welfare order will ordinarily be dismissed unless exceptional circumstances justify its determination.

Four mothers appealed decisions arising from private law children proceedings involving allegations of domestic abuse by the fathers. Permission was granted in the High Court, and the appeals were transferred to the Court of Appeal for a joint hearing.

• In Re B-B, the mother challenged a consent contact order. She contended that the judge’s earlier remarks about care proceedings and adoption had undermined her freedom to agree.
• In Re H, the mother challenged the rejection of rape allegations and the decision not to investigate other alleged abuse. She accepted that established unsupervised contact should continue and sought no identified change to the substantive arrangements.
• In Re T, the mother challenged the rejection of anal rape allegations and the assessment of established violence. The father sought to cross-appeal a finding that he had placed a plastic bag over her head.
• In Re H-N, the mother challenged the evaluation of alleged and admitted abuse, including the father’s wrongful retention of their child in France. The father sought permission for the child to live with him there.

The common questions concerned the necessity and scope of fact-finding, the assessment of patterns of abuse, the use of Scott Schedules and the relevance of criminal law concepts.

1. The appeals in Re B-B, Re T and Re H-N were allowed. The appeal in Re H and the father’s cross-appeal in Re T were dismissed. The individual decisions applied established principles of fairness and fact-finding; the court expressly disclaimed the creation of new binding precedent ([18]; [225]).

2. A fact-finding hearing must be necessary and proportionate to the child welfare issues. The court must consider the relevance of the allegations, the purpose of establishing facts, available admissions or other evidence, and procedural proportionality. Practice Direction 12J operates with the overriding objective in rule 1.1 of the Family Procedure Rules 2010. It creates no separate jurisdiction to determine irrelevant domestic abuse allegations ([35]–[37]; [58]; [139]–[140]).

3. Relevant coercive or controlling behaviour must be assessed as a pattern, with attention to its cumulative impact on the parent and child. Physical injury is unnecessary, and separation does not establish that future risk has ended. Where a relevant pattern is alleged and fact-finding is necessary, that pattern should ordinarily be the primary issue. Specific allegations should be selected for their probative relevance, subject to allegations sufficiently serious to warrant independent determination. Scott Schedules can obscure the cumulative picture; replacement procedures required further development ([26]–[32]; [46]–[59]).

4. The majority approach in Re R (Children) (Care Proceedings: Fact-finding Hearing), [2018] EWCA Civ 198, remained authoritative. Family courts determine behaviour on the balance of probabilities for welfare purposes, without applying criminal offence definitions. They may use ordinary descriptive terms such as rape. Understanding trauma and considering fair procedures are distinct matters; further procedural questions were left open ([62]–[74]).

5. In Re B-B, the judge’s unjustified remarks had exceptionally permitted an inference that the mother’s later agreement resulted from serious procedural irregularity. Evidence establishing that causal connection would ordinarily be required. The matter was remitted to another judge. Consent orders must undergo judicial scrutiny ([108]–[115]).

6. In Re H, the appeal had become academic because no effective challenge remained to the substantive contact order. The exceptional conditions for hearing an academic appeal were unsatisfied. The court declined to examine the merits of the disputed findings ([134]–[154]).

7. In Re T, the judge’s assessment of the rape evidence was entitled to appellate respect. However, she failed to evaluate the established violence cumulatively or appreciate its intimidating character and welfare significance. All existing positive and negative findings remained effective. Another judge would decide whether further fact-finding was necessary ([163]; [173]–[184]).

8. In Re H-N, the judge’s analysis overlooked significant evidence, discounted admissions and failed to assess wrongful retention within the overall pattern and its impact. Victimhood did not require blamelessness. The findings were set aside, the admissions were to be recorded, and the case was remitted to the Designated Family Judge for further case management ([200]–[223]).

• Court of Appeal: Heard the four transferred appeals together. Allowed Re B-B, Re T and Re H-N, with remittals for further case management. Dismissed Re H and the father’s cross-appeal in Re T. In Re T, the existing findings remained effective; in Re H-N, the findings were set aside and the father’s admissions preserved.
• High Court: Granted permission to appeal in each case before transfer to the Court of Appeal. Cohen J granted permission in Re B-B on 20 November 2020; Judd J in Re H on 28 July 2020; Lieven J granted permission out of time in Re T on 3 November 2020; Williams J in Re H-N on 30 September 2020.
• Family Court — Re B-B: HHJ Scarratt made a consent contact order on 5 August 2019 after earlier hearings involving unresolved abuse allegations. Continuing enforcement proceedings provided the setting for the remittal.
• Family Court — Re H: HHJ Tolson rejected rape allegations and declined to investigate other allegations in September 2019. Subsequent proceedings before HHJ Cox confirmed continuing unsupervised contact. The Court of Appeal treated the challenge to the earlier findings as academic.
• Family Court — Re T: HHJ Evans-Gordon made findings and welfare case management directions on 13 December 2019. The Court of Appeal overturned the evaluation of the established violence while preserving the individual findings.
• Family Court — Re H-N: HHJ Tolson declined the findings sought by the mother on 28 August 2020 and made further case management directions. The Court of Appeal set aside the findings and remitted the case to the Designated Family Judge at the Central Family Court.