Re O (Appeal; Duty to Consider Fact-Find) [2024] EWHC 839 (Fam)


Dr Charlotte Proudman successfully represented a mother in an appeal against an unsupervised child contact order on five grounds, including the previous judge’s failure to consider the mother’s vulnerability and whether she needed special measures, failure to consider whether there should be a fact-finding on mother’s allegations of abuse, and failure to implement PD12J. Despite the father admitting he threatened to slit the mother’s throat in front of the children, the judge referred to it as a “toxic” relationship – not domestic abuse. The appeal was allowed, and the order for child contact was set aside. 

Grounds of Appeal Summarised

The appellant sought permission to appeal an order based on five grounds:

  1. No ‘ground rules’ hearing was held before the final hearing.
  2. The judge did not implement necessary participatory directions to ensure parties couldn’t see each other during the hearing, hindering the mother’s ability to give her best evidence as a vulnerable party under the Domestic Abuse Act 2021.
  3. Part 3 FPR 2010 and PD3AA were not addressed: These required the court to consider the mother’s vulnerabilities and how to assist her in giving evidence.
  4. The judge didn’t address the mother’s broader allegations of domestic abuse, which were relevant to decisions about the children’s welfare.
  5. Child arrangements orders were made without applying relevant procedural directives, despite the father’s admission of threatening behaviour and the mother’s allegations of abuse.

The Issues in the Case

Despite significant agreement between parties, a dispute remained on grounds four and five of the appeal [34;36]. The Appellant argued it was necessary for the Recorder to determine other allegations because they were relevant to the welfare decisions, and disputed that she did not want to pursue findings of fact beyond the threat to slit her throat nor withdrawing allegations [37;38]. It was argued on behalf of the Appellant that “without a fact-find the Recorder cannot have considered or analysed risk. Part of the Appellant’s case was that the father emotionally manipulated the children in contact. Part of the Schedule of Allegations which the Appellant had placed before the court were said to be relevant to that issue. Coercive and controlling behaviour is a pattern of behaviour.” [39]

“Further it is submitted on behalf of the Appellant that the Recorder wrongfully downplayed the seriousness of the threat “I will slit your throat” in paragraph 12. 

Nowhere did he say it met the threshold for PD12J, nor did he make any reference to the impact of that threat on the mother. 

There are passages in the judgment which are examples of “victim blaming”.” [40]

The Decision

The judge determined that the Recorder should have considered whether to make findings of fact regarding the coercive and controlling behaviours alleged by the Appellant rather than relying on prior determinations. He should have continuously reviewed the matter. Despite the absence of an application for a fact-finding hearing from the Appellant, the Recorder still had an obligation to assess whether such a hearing was necessary to resolve the allegations in the case. [See 43]

Toxic/Domestic Abuse

The judge further noted the Recorder should have independently considered whether a fact-finding investigation was necessary, regardless of any formal application. This need is evident from paragraphs 17 and 18 of his judgment, where the Appellant argued that the older child’s mental health issues were not solely due to witnessing a threat but also prior abusive behaviours by the Respondent. Despite this, the Recorder stated that no fact-finding should occur, and he couldn’t assume abusive behaviour, yet acknowledged the relationship as “toxic,” implying fault on both sides, implicitly determining the facts. 

The Recorder failed to consider the potential connection between the Appellant’s allegations of emotional manipulation of the younger child during contact and past instances of alleged controlling and manipulative behaviour towards the children. He did not assess whether investigating these past allegations was relevant to establishing the facts or indicating a pattern of behaviour relevant to the children’s welfare. The judge considers the Recorder was wrong in not considering whether or not to have a fact-finding hearing in relation to the allegations. [See 44]

“In the circumstances of this case, I thus conclude that the learned Recorder erred in that he failed to consider whether the nature and extent of the allegations, if proved, would be relevant to any issue before the court – PD12J(17)(g) applied. 

Accordingly, I find that the learned Recorder was wrong not to consider whether or not a fact-find was necessary. However, I do not go so far as to say that he should have decided to have a fact-find. I do not go that far because I do not need to do so for the purposes of this appeal and because I am conscious that it will be for the judge who rehears the case to decide on the facts and arguments presented to them whether or not a fact-find is necessary.” [45]

The appeal was allowed, and the order for contact was set aside. [See 46]. Read the judgment.

Related barristers: Dr Charlotte Proudman

Related practice areas: Family


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