ER v NT (Need for fact finding hearing)

In private-law children proceedings involving alleged domestic abuse, the court must identify the welfare issues, understand the nature of the disputed allegations, and decide whether determining them is necessary and proportionate to provide a factual foundation for assessing risk and welfare. A court must give sufficient reasons for that case-management decision. Limited admissions, historic allegations, post-separation contact or completion of an anger-management course do not necessarily provide a sufficient factual basis to proceed without fact-finding. Alleged patterns of coercive or controlling behaviour may remain relevant even when they pre-date the child’s birth. A separate fact-finding hearing is required where the disputed accounts materially affect the assessment of risk and the child’s welfare.

The mother appealed against HHJ Godwin’s decision of 14 February 2025 dismissing her application for a fact-finding hearing concerning alleged domestic abuse and coercive and controlling behaviour by the father. The judge ordered interim indirect contact and directed a report under section 7 of the Children Act 1989.

The father had made limited admissions concerning substance misuse, isolated incidents and certain conduct, but denied or could not recall much of the alleged physical, verbal, coercive and controlling behaviour. The appeal concerned the adequacy of the judge’s reasons, the application of PD12J, the assessment of the evidence, reliance on an anger-management course and the interim contact order.

1. The appeal was allowed on Grounds 1, 3 and 4 and dismissed on Grounds 2 and 5. The matter was remitted for a fact-finding hearing before a different Circuit judge.

2. The court was not required to set out PD12J mechanically in the judgment because the parties had addressed it and the sealed order recorded that it had been considered. Nevertheless, the judgment had to give sufficient reasons explaining why the fact-finding application succeeded or failed and enabling appellate review.

3. In deciding whether a separate fact-finding hearing is necessary, the court must identify the welfare issues; identify the nature of the disputed allegations; and decide whether those allegations are relevant to the welfare issues such that determining them is necessary and proportionate. The court must consider the purpose of fact-finding, namely to provide a factual basis for assessing risk and the impact of alleged abuse, together with delay and any other evidence providing a sufficient factual foundation.

4. The judge failed adequately to identify the welfare issues or examine the alleged course of coercive and controlling behaviour. The father’s limited admissions did not provide a sufficient factual basis for an accurate risk assessment under PD12J, particularly in light of the stark disparity between the admitted and alleged conduct. The fact that allegations were historic did not make them irrelevant. Their longitudinal nature could be highly relevant to future risk.

5. The judge also placed impermissible weight on the three-day Anger Planet course and its report. That material did not address sufficiently the alleged domestic abuse, coercive control, minimisation or lack of accountability, and could not substitute for findings where the disputed allegations were materially relevant.

6. Fact-finding and welfare evaluation may occur at one hearing, but treating them as a single undifferentiated holistic exercise risks confusion. Facts requiring proof must be determined on the balance of probabilities before they are used as the foundation for welfare decisions. Here, the need for a proper factual foundation outweighed the delay caused by a separate hearing.

7. The judge was entitled to make the interim indirect-contact order. The arrangement had been proposed by the mother and contained safeguards, including monitored video contact through a link shared with her solicitors.

• High Court (Family Division): appeal from HHJ Godwin’s decision of 14 February 2025. Appeal allowed on Grounds 1, 3 and 4, dismissed on Grounds 2 and 5, and the matter remitted for a fact-finding hearing before a different Circuit judge.