B (A Child)

In private-law child-arrangements proceedings, a court deciding whether to make findings about domestic abuse must apply PD12J’s structured framework. It must consider whether the allegations, if proved, are relevant to the issue before it and whether fact-finding is necessary and proportionate. Evidence under para 17(d) must provide a sufficient factual basis on the abuse-related risk; an unexplained reference to other evidence is insufficient. A court cannot both preclude fact-finding and assume that the allegations will be taken into account in the welfare assessment without explaining how their relevance can be assessed. Contradictory reasons and failure to analyse the full application justify remittal. Similar-fact evidence is not subject to a blanket requirement that it be reasonably conclusive before admission.

Private-law child-arrangements proceedings concerned the future living arrangements of a seven-year-old child. The mother alleged that the father had subjected her to controlling and coercive behaviour and sought fact-finding. The Recorder dismissed her application for a combined fact-finding and welfare hearing and refused permission to rely on evidence from the father’s former girlfriend. Peel J dismissed the mother’s first appeal. On a second appeal, the central issues were whether the Recorder had properly applied PD12J and whether the third-party evidence should be admitted if fact-finding took place.

Appeal allowed in part and remitted. The Court of Appeal remitted the decision to the Family Court for swift redetermination by the judge conducting the final hearing. It expressed no view on the ultimate outcome.

1. PD12J applies to family proceedings involving a question about where a child should live or about contact, notwithstanding a factual difference between the present case and the cases in which the relevant guidance had previously been developed. The principles were explained in Re H-N (Children) (Domestic Abuse - Finding of Fact Hearings) [2022] 1 WLR 2681; [2021] EWCA Civ 448 and Re K (Children) [2022] 1 WLR 3713; [2022] EWCA Civ 468.
2. The court must apply the structured framework in PD12J para 17. Particular importance attached to whether the allegations, if proved, would be relevant to the issue before the court and whether fact-finding was necessary and proportionate.
3. The Recorder’s order prohibited fact-finding, while the recital and reasons appeared to assume that the mother’s allegations would nevertheless be taken into account in the welfare assessment. The reference to other evidence under para 17(d) appeared to concern evidence about risk arising from abuse, not unrelated evidence. It was unclear how the relevance of the allegations could be assessed without findings. The discrepancy between the order and the reasoning, and the failure to analyse the full application, required reconsideration.
4. The court rejected the submission that similar-fact evidence should not be admitted unless it was likely to be reasonably conclusive. That submission was contradicted by para 46 of O’Brien v Chief Constable of South Wales [2005] 2 AC 534; [2005] UKHL 26. If fact-finding took place, the authorities were likely to lead to admission of the former girlfriend’s evidence, although the final decision remained for the rehearing judge.

• Court of Appeal (Civil Division): [2022] EWCA Civ 1439, 2 November 2022. Appeal allowed in part and the decision remitted for fresh determination.
• High Court of Justice, Family Division (Peel J): 14 June 2022. First appeal dismissed.
• Family Court (Recorder Beck): 6 December 2021. Application for a combined fact-finding and welfare hearing dismissed; permission to file the former girlfriend’s statement refused.