A v K (Appeal: Fact Finding: PD12J)

In private law children proceedings, allegations of domestic abuse do not automatically require a fact-finding hearing. The court must identify the precise welfare issue, consider whether the alleged abuse would affect the decision if proved, and assess whether a fact-finding hearing is necessary and proportionate. The purpose of fact-finding is to provide a basis for assessing risk and the impact of alleged abuse on the child. A court should determine only those issues necessary to dispose of the application. A joint lives with order may be appropriate even where care is divided unequally and the parents remain antagonistic. Family proceedings should not be used to litigate historic grievances that have no material bearing on the child’s welfare.

The mother appealed against decisions of HHJ Talbott in private law proceedings concerning the parties’ eight-year-old daughter. The Family Court declined to hold a fact-finding hearing on cross-allegations of domestic abuse and made child arrangements orders increasing the father’s overnight contact and providing for a joint lives with order. The mother argued that the court had failed to address allegations of coercive and controlling behaviour, had wrongly treated the existing overnight contact as determinative, and had failed to assess the welfare implications of the father’s alleged views about women. Permission was granted on Grounds 2 to 5, although Ground 5 was withdrawn. The central issues were whether the fact-finding decision and the resulting welfare orders were wrong or unjust.

The appeal was dismissed. The stay on the relevant provisions of the order below was lifted, subject to updating implementation dates.

1. Fact-finding. The judge correctly applied PD12J and the authorities. The court must first identify the welfare issue to which the allegations may be relevant. It must then consider the purpose of fact-finding, namely to provide a basis for assessing risk and the impact of alleged abuse on the child. It must ask whether, if proved, the allegations would affect the welfare decision, whether existing evidence provides a sufficient factual basis, and whether a hearing is necessary and proportionate.
2. Domestic abuse must not be minimised, including controlling or coercive behaviour. Its seriousness does not remove the need for a case-specific analysis. The mother’s informed agreement to overnight contact, the Cafcass evidence, the criminal conviction relating to one incident, and other available material entitled the judge to conclude that further findings were unnecessary for the welfare decisions.
3. The court was entitled to reject the submission that a charging decision by the CPS was required before deciding whether fact-finding was necessary. The family court’s fact-finding function is distinct from that of the criminal court.
4. The judge was entitled to increase overnight contact. He had considered the mother’s agreement in the context of the allegations and was satisfied that it was informed and freely maintained with legal advice and representation.
5. A joint lives with order is not confined to equal shared care. Its suitability depends on the child’s welfare and the circumstances of the case. Parental antagonism does not by itself make such an order inappropriate. Here, the order properly marked the importance of both parents and was capable of supporting M’s emotional welfare.
6. Judges should press parties to explain why disputed allegations must be determined and what difference a finding would make to the welfare outcome. Where allegations are irrelevant to that outcome, unresolved adult disputes should remain unresolved.

• Central London Family Court: HHJ Talbott declined to hold a fact-finding hearing and made child arrangements orders concerning overnight contact, schooling and a joint lives with arrangement.
• High Court (Family Division): The appeal was dismissed. The stay imposed pending appeal was lifted.