YK (Father) v TS (Mother)

Fact-finding hearings in private-law children proceedings are not free-standing litigation. They should identify only findings relevant to the child’s safety, welfare and future arrangements. The court should avoid investigating responsibility for the breakdown of the parents’ relationship where that inquiry does not assist the welfare decision.

Risky or abusive behaviour must be assessed in its relational and contextual setting. Conduct arising from the stresses of a relationship may present a different future risk after separation. Findings of past incidents do not, without more, establish an intention to harm a child or a continuing propensity to violence. The court must make only proportionate findings and may require psychological assessment before deciding whether unsupervised contact is appropriate.

The proceedings concerned arrangements for A, a child born in December 2022, following the parents’ separation. The father had obtained orders preventing the mother from removing A from the United Kingdom. Both parties made extensive allegations of domestic abuse, supported substantially by recordings and videos.

The court conducted a fact-finding hearing concerning incidents involving the parents and conduct towards A. The central issues were which findings were necessary for A’s welfare and whether the mother posed a future risk if A lived with her or had unsupervised contact.

1. The court made findings concerning the mother’s rough handling of A, including placing her on a bed, placing her hands around A’s throat and holding A over the edge of a bed. The court also found that both parents had engaged in harmful conduct towards each other and that A had been exposed to a toxic and highly emotional relationship.
2. Following K v K [2022] EWCA Civ 468 at [65], the judge held that fact-finding hearings are intended to protect children from abuse, not to provide an opportunity to determine responsibility for a failed relationship. Most of the allegations were of limited or no relevance to A’s future care. It was therefore disproportionate to determine every allegation.
3. The harm caused to A by the parents’ conflict was attributed to both parents. The mother’s risky behaviour towards A was assessed in the context of the stresses of the relationship, including isolation, bereavement, IVF treatment, pregnancy and a difficult birth. The judge found no intention to harm A.
4. The parents had separated, and the judge considered the prospect of recurrence to be small. The evidence did not establish that the mother posed a present risk to A, although the judge rejected an argument that an incident when the mother was 11 demonstrated a propensity to violence.
5. The court stated that A’s best interests governed the decision and noted the principle in s 1(2A) that it is normally in a child’s best interests to know both parents. Given the incidents that had occurred, a psychological assessment of the mother was necessary and proportionate to advise whether she posed any risk and whether therapeutic work would assist before unsupervised contact. The supplied judgment does not state the final child-arrangements order.