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

In private-law children proceedings, a fact-finding hearing about domestic abuse is required only where it is necessary and proportionate to determine welfare, risk or child-arrangements issues. Where coercive or controlling behaviour is alleged, the court should consider whether the evidence establishes an abusive pattern and its cumulative impact on the parent and child. Specific allegations should normally be selected for their probative value to that issue, unless independently serious.

The Family Court determines facts on the civil standard and should decide what occurred, rather than apply criminal-law ingredients or defences. A judge must stand back from individual findings, assess their cumulative significance and consider their effect on risk and welfare. A consent order cannot stand where serious procedural irregularity has deprived a parent of genuine consent.

Four conjoined appeals arose from private-law proceedings under the Children Act 1989. Each concerned alleged domestic abuse between parents and the implications for child-arrangements decisions.

• Re B-B: the mother challenged a consent contact order after the judge had made alarming and inappropriate remarks at an earlier hearing.
• Re H: the mother challenged findings rejecting rape allegations, although unsupervised contact had continued and been confirmed in later proceedings.
• Re T: the mother challenged the judge’s treatment of findings of violence and the rejection of an allegation of anal rape; the father cross-appealed one finding.
• Re H-N: the mother challenged the rejection of allegations, including controlling and coercive behaviour, before a proposed welfare assessment and relocation application.

The common questions concerned the need and scope for fact-finding hearings, patterns of abuse, the use of Scott Schedules, and criminal-law concepts in family fact-finding.

1. Appeals allowed in Re B-B, Re T and Re H-N; appeal dismissed in Re H. The Court gave general guidance, while stressing that its observations did not establish new binding law.
2. A fact-finding hearing under Practice Direction 12J is not automatic. The court must identify the real welfare issue, ask whether findings are necessary for risk assessment or child-arrangements decisions, and ensure that the proposed process is proportionate. In an alleged coercive or controlling relationship, the primary issue will often be whether there was a pattern of abusive behaviour and its impact. Individual allegations should be tried for their probative value to that pattern, unless independently grave.
3. The Family Court applies the balance of probabilities and should determine conduct and its effects. It should not decide whether criminal offences or defences have been established by applying criminal-law concepts. Familiar language, including rape, may be used as a general description of non-consensual penetrative sexual assault, but must not suggest a criminal conviction.
4. In Re B-B, the earlier remarks about removal and adoption had continuing consequences. They created an exceptional procedural irregularity from which it could properly be inferred that the mother’s consent to the later order was not genuine. The order was set aside and the case remitted to a different judge.
5. In Re T, the judge was entitled not to find anal rape proved, and the father’s cross-appeal against the plastic-bag finding failed. However, the judge failed to stand back from her findings of violent and intimidating conduct, and so failed to assess whether they established coercive or controlling behaviour and risk. The case was remitted to a different judge under Practice Direction 12J.
6. In Re H-N, the judge’s evaluation was seriously flawed. He failed to analyse the father’s admissions, wrongful retention of the child and alleged pattern of control cumulatively, and allowed irrelevant views about the mother to distort the inquiry. The findings were set aside and the matter remitted for case management.
7. In Re H, the challenge no longer had a practical welfare purpose because contact was accepted and later proceedings had superseded the position. Applying the principles governing academic appeals, the Court dismissed it.

• Court of Appeal (Civil Division): Conjoined appeals determined in [2021] EWCA Civ 448. The appeals in Re B-B, Re T and Re H-N were allowed; Re H was dismissed.
• Central Family Court: HHJ Tolson QC made the decisions challenged in Re H and Re H-N.
• Guildford Combined Court: HHJ Evans-Gordon made the decision challenged in Re T.
• Canterbury Combined Court Centre: HHJ Scarratt made the consent order challenged in Re B-B.