Z v A Local Authority

A family court may make findings beyond a local authority’s pleaded threshold schedule, but must act cautiously. The greater the disparity between the pleaded case and the proposed findings, the greater the need for procedural safeguards. The findings must be securely founded in the evidence and the process must give affected parties a fair opportunity to meet the case.

Domestic abuse must be assessed cumulatively where the evidence may disclose coercive or controlling behaviour. A pattern of coercive control may establish a likelihood of significant harm even though the individual incidents, considered separately, might not do so.

In care proceedings concerning a young child, the local authority alleged arguments, abusive behaviour and other risks within the parents’ home, but ultimately proposed that no public law order be made. The recorder nevertheless conducted a fact-finding hearing. He found that the father had exercised coercive and financial control over the mother and concluded that the threshold under section 31(2) of the Children Act 1989 was crossed.

The father appealed, contending that findings extending beyond the local authority’s final threshold schedule were reached unfairly, particularly because several authors of hearsay records were unavailable for cross-examination. He also argued that the findings were not adequately linked to significant harm. The central issues were whether the fact-finding process was fair and whether the established pattern of coercive control justified the threshold conclusion.

1. Appeal dismissed. A judge is not confined rigidly to a local authority’s schedule of proposed findings. Evidence may develop during a contested hearing and may justify findings which expand upon the pleaded case. The judge must nevertheless proceed cautiously. The extent of any disparity affects the procedural safeguards required. Any additional finding must be securely founded in the evidence and reached without compromising fairness (paras [70]–[74]).

2. The coercive-control finding remained within the known parameters of the proceedings. Controlling behaviour had featured from the outset, appeared in the written evidence, and was expressly advanced by another party before and during the hearing. The mother and father were questioned about the relevant incidents, their counsel addressed coercive control on its merits, and neither sought an adjournment or identified further evidence they wished to adduce. The recorder was therefore obliged to address the issue and was entitled to make the finding (paras [75]–[86]).

3. The absence of several potential witnesses did not make the hearing unfair. The parties knew that disputed threshold findings remained for determination and should have identified witnesses required for cross-examination at the case-management stage. They could also have sought an adjournment. The recorder evaluated the hearsay evidence cautiously, considered the consistencies between contemporaneous accounts, and gave intelligible reasons for rejecting parts of the parents’ oral evidence. His references to evidence being unpersuasive did not reverse the burden of proof (paras [88]–[91]).

4. Where domestic abuse may involve coercive or controlling behaviour, the court must examine the evidence cumulatively for a pattern. Individual incidents might not, taken separately, establish actual or likely significant harm. The pattern of coercive control found here plainly established a likelihood that the child would suffer significant harm attributable to the care given or likely to be given. It was also open to the recorder to find that both limbs of section 31(2) of the Children Act 1989 were satisfied (paras [92]–[94]).

5. The parties’ agreement that no section 31 order was required did not relieve the recorder of responsibility for determining threshold and welfare. Clear findings could inform assessment, future protective work and the appropriate order (para [87]).

1. Court of Appeal (Civil Division): The father’s appeal was dismissed. The court upheld the recorder’s findings, including coercive control, and the conclusion that the section 31(2) threshold under the Children Act 1989 was crossed: [2022] EWCA Civ 169.
2. Family Court at Portsmouth: Recorder Leong conducted a fact-finding hearing, found coercive and controlling behaviour and concluded that the statutory threshold was crossed. The care proceedings were adjourned for further assessment and case management.