C (A Child) (Appeal: Fact-finding: Domestic Abuse), Re

An appellate court reviewing domestic-ab abuse findings must respect the trial judge’s advantage in hearing the evidence and should not re-evaluate the facts through narrow textual analysis. The court may interfere only in a rare case, such as where a conclusion lacks evidential support, rests on a misunderstanding of the evidence, or is one no reasonable judge could reach.

Domestic abuse is widely defined by the Domestic Abuse Act 2021. The court declined to decide whether intention is required for coercive or controlling behaviour. A practice direction cannot narrow statutory language. Where extensive evidence was not put to the witness or relied on at trial, an appellate court should not make fresh findings. Further fact-finding may properly be refused where delay would be disproportionate and harmful to the child.

The mother appealed findings made by Recorder Pollard at a fact-finding hearing concerning allegations of domestic abuse, coercive and controlling behaviour, and sexual abuse. The Recorder rejected the allegations of sexual abuse and made findings of some abusive and controlling behaviour, but the order’s recitals inaccurately stated that no findings of domestic abuse had been made and that no findings were made on the allegations.

The appeal was narrowed to whether, in light of the findings, admissions and evidence, the Recorder had wrongly categorised the father’s behaviour. The mother also relied on numerous text messages which had not been put to the father in cross-examination or substantially addressed in the submissions.

1. Disposition. The appeal was allowed only to the extent that recitals 3 and 4 of the order were deleted. No replacement recitals were required. The lower court’s judgment and this judgment were to be considered in future welfare decisions.
2. The appellate court’s role is limited. It must respect the trial judge’s advantage in hearing the parties and witnesses, assessing credibility, and evaluating the whole body of evidence. It should avoid narrow textual analysis and should not substitute its own evaluation merely because it might have reached a different conclusion. Intervention is exceptional and is justified where the conclusion had no evidential basis, resulted from a misunderstanding of the evidence, or was one no reasonable judge could reach.
3. The Recorder’s substantive findings were not rationally insupportable. Read in context, his reference to “limited” controlling behaviour did not minimise the serious findings made; it reflected his rejection of more serious allegations and his earlier direction that the overall picture, rather than every individual allegation, would be considered. The findings disclosed repeated inappropriate and abusive behaviour, rather than one or two isolated incidents.
4. The Recorder was entitled not to make findings on every allegation, particularly where the case-management approach had not been appealed. The appellate court could not make additional findings on disputed matters or text messages where they had not been put to the father, had barely featured in the written case, and required assessment of their context.
5. The omission of the messages from the judgment was unsatisfactory, but it did not justify remittal. Their unresolved character could be considered proportionately as part of the welfare evaluation, including whether the father understood the inappropriateness of some messages.
6. The court declined to decide whether intention is an ingredient of coercive or controlling behaviour. The point required fuller argument. The definitions in the Domestic Abuse Act 2021 are wider than the definitions in PD12J, and a practice direction cannot narrow statutory language. The Recorder’s later statement that threats were necessary for coercive behaviour was mistaken, but it was made after judgment and did not affect the findings.
7. Third-party behaviour may, in appropriate circumstances, have a coercive or controlling effect on a connected person, although particular caution is required before an appellate court makes additional findings based on such evidence.
8. Further fact-finding would be disproportionate after the exceptional delay, which was likely harmful to the child and had severed her relationship with her father. The welfare proceedings should proceed without another fact-finding hearing.

• High Court (Family Division): Recorder Pollard’s fact-finding decision of 16 October 2024 was challenged. The appeal was allowed only to delete inaccurate recitals from the order.
• High Court: Permission to appeal had been granted by Williams J on specified grounds, while permission was refused concerning the rejected allegations of sexual abuse.