O (Appeal; Duty to Consider Fact-Find), Re

An appellate court must independently consider whether a fact-finding hearing is necessary where allegations of domestic abuse or coercive and controlling behaviour may be relevant to welfare decisions. That duty applies even where the party seeking findings makes no application and earlier procedural decisions addressed the allegations. The court must keep the issue under review and consider whether the allegations, if proved, would be relevant to an issue before it. A court must not avoid determining the issue while making factual or evaluative findings which implicitly rely on it. Where domestic abuse is admitted or alleged, the court must apply the relevant provisions of PD12J before making child arrangements orders.

The mother appealed against a Child Arrangements Order made by Mr Recorder Ian Peacock on 2 November 2023. The order provided for the younger child’s supervised contact with the father to progress to unsupervised and overnight contact. The older child was not subject to an order.

The mother alleged domestic abuse, including coercive and controlling behaviour, and relied on the father’s admitted threat to slit her throat. She argued that the Recorder had failed to address vulnerability and participation directions under Part 3A of the Family Procedure Rules 2010 and PD3AA, and had failed to consider whether a fact-finding hearing was necessary under PD12J. The appeal concerned whether the Recorder was required to consider that issue notwithstanding earlier decisions and the absence of a renewed application.

1. Appeal allowed. The contact order was set aside. The father’s application for a Child Arrangements Order was remitted for rehearing before a Circuit Judge, with a directions hearing before the trial judge.

2. The appeal was a review, not a rehearing. Under Family Procedure Rules 2010, rules 30.12(1)–(4), the appellate court could allow the appeal where the decision was wrong or unjust because of a serious procedural or other irregularity. It could draw factual inferences from the evidence before the lower court but could not receive new evidence.

3. The Recorder had failed to discharge the mandatory duties concerning vulnerability and participation directions under Part 3A of the Family Procedure Rules 2010 and PD3AA. Those obligations rested on the court independently of the parties and continued throughout the proceedings. Grounds 1–3 and part of Ground 5 were therefore made out.

4. Given the admitted threat and the wider allegations, the Recorder should have considered whether a fact-finding hearing concerning alleged coercive and controlling behaviour was necessary. He should not have relied on earlier decisions without keeping the issue under continuous review. The absence of an application by the mother did not absolve him from that duty.

5. The relevant inquiry under PD12J included whether the nature and extent of the allegations, if proved, would be relevant to any issue before the court. The Recorder failed to address the possible connection between alleged past controlling and coercive behaviour, alleged emotional manipulation during contact, the children’s welfare, and risk. His statement that he could not proceed on the basis of abusive behaviour, followed by a conclusion that the relationship had become toxic, illustrated the difficulty created by failing to determine whether the facts required investigation.

6. The court did not decide that a fact-finding hearing was required. That was for the judge rehearing the application, on the facts and arguments then presented.

• High Court (Family Division) — Appeal against the Child Arrangements Order made by Mr Recorder Ian Peacock on 2 November 2023. Appeal allowed; order set aside and application remitted for rehearing before a Circuit Judge.
• Family Court at Guildford — Child Arrangements Order made providing for the younger child’s contact with the father to progress from supervised to unsupervised and overnight contact.