JK (A Child), Re (Domestic Abuse: Finding of Fact Hearing)

In private-law children proceedings, a fact-finding hearing concerning domestic abuse must be necessary and proportionate to the welfare issues before the court. Alleged coercive or controlling behaviour should be assessed as a pattern, cumulatively, while specific incidents are evaluated as evidence of that pattern. Scott Schedules must not obscure the wider course of conduct. Not every directive, assertive, stubborn or selfish act is domestic abuse; intention and harmful impact are relevant. Cultural expectations may provide context but do not justify conduct that subjugates a person. Controlling behaviour may continue after physical violence stops, although the court must distinguish controlling from coercive behaviour by reference to the evidence and period under consideration.

This was a first-instance finding of fact hearing concerning a three-year-old child. The father initially sought the child’s return from England to Z, but later accepted that she should remain in the mother’s care and sought direct contact, including contact in England and Z. The mother opposed extensive contact and alleged a pattern of coercive and controlling behaviour, physical violence against herself and assaults against the child. The father denied the allegations and alleged that the mother had fabricated complaints, restricted his contact and wrongfully removed the child from Z. The central issues were whether either party’s allegations were proved and what findings were required for the future determination of child arrangements.

The court made findings of fact and left the final determination of child arrangements for a later stage.

1. Evidence. The burden lay on the party making each allegation, and the standard was the balance of probabilities. Findings had to be based on evidence rather than suspicion or speculation. The evidence had to be assessed as a whole, with individual items considered in context. Lies had to be approached cautiously because they may arise from several motives, and lying about some matters did not establish that all evidence was false. Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12; Re T [2004] EWCA Civ. 558; R v Lucas [1981] QB 720.
2. Fact-finding and domestic abuse. Applying the guidance in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA 448 (Civ), and the principles in Family Procedure Rules 2010 PD12J, the court considered the relevance of the allegations to child arrangements, risk and welfare assessment, the availability of other evidence, and necessity and proportionality. Where a pattern of coercive or controlling behaviour was alleged, that pattern was the primary issue. Specific incidents were considered for their probative value or seriousness, and findings were set out narratively rather than by slavish adherence to Scott Schedules.
3. Meaning and application. Coercive and controlling behaviour was assessed cumulatively and in context. Not every directive or insensitive act amounted to abuse. The court considered cultural context, but found that the father’s conduct in England went beyond mutual cultural expectations and was intended, and had the effect, of subjugating the mother. His control of finances, movements and social interaction, psychological manipulation, intimidation, violence and threat of violence constituted domestic abuse. After the move to Z, controlling behaviour continued, but the absence of violence, threats or intimidation during the relevant period meant that it was not categorised as coercive behaviour during that period.
4. Findings. The father assaulted the mother in October 2014, October 2017 and on 21 March 2018. He behaved violently and intimidatorily outside the mother’s family home on 15 August 2019. The alleged physical assaults on the child were not proved. The mother’s allegations that the father’s contact with the child had been restricted were not proved. Her removal of the child from Z without the father’s knowledge or consent was proved, although the court accepted that she acted from a genuine fear that the child would be taken from her care.
5. Orders concerning indirect contact and directions for preparation of the final child-arrangements determination were made.