Carter J
FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15
Counsel for Father noted the following propositions regarding paragraphs 16 and 17 of Practice Direction 12 J taken from the Court of Appeal judgment in Re H-N and K v K [2022] EWCA Civ 468: (a) Not every case requires a fact-finding hearing even where domestic abuse is alleged. It is of critical importance to identify the real issue in the case in particular with regard to the welfare of the child before a court is able to assess if, a fact-finding hearing is necessary and if so, what form it should take (Re H-N para 8). (b) Fact-finding is only needed if the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children's welfare (K v K para 8). ( c) The judge considering a fact-finding hearing must first identify the child welfare issue to which the resolution of the dispute will be relevant (K v K paras 41-45). ( d) While domestic abuse is pernicious and the courts have a greatly improved understanding of the various forms of abuse and the impact upon victims and children, "that does not, however, mean that in every case where there is an a/legation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing". So much is clear from the detailed guidance set out in paragraphs 16-20 of PD12J and, in particular, at paragraph 17: "(g) whether the nature and extent of the a/legations, if proved, would be relevant to the issue before the court" (Re H-N, para 139); ( e) The correct approach is as follows (Re H-N, para 3 7) i) The first stage is to consider the nature of the allegations and the extent to which they are likely to be relevant in deciding whether to make a [ contact / residence order] and if so in what terms (PD12J.5). The applicant has submitted that the allegations set out in the Scott Schedule are relevant in the court's assessment of whether to modify or extend the contact order. ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children. iii) Careful consideration must be given to PD12J.17 as to whether it is 'necessary' to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and [2025} CIGC (Fam) 12 -BB v DD re A (a Child) FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15
Counsel submitted that the court should embark on the fact-finding exercise because dealing with the allegations raised by M, are directly relevant when determining whether to make a ''.joint 50:50" order as sought by F. _Counsel sub111_itted the follo_wing insuppo_rt: "(i) Per paragraph 4 of PD12J, [A] may have suffered indirect harm by virtue of F's actions as the domestic abuse alleged has had a significant impact on M (ii) There is a greater risk of [A] being exposed to F's actions as [A] grows older. In particular, [A] will grow more aware of F's views of his Mand will be less shielded from them, the more time he spends with F. (iii) The alleged actions of F have occurred, predominantly, whilst the parties have been in litigation. Ordinarily, such actions decrease during litigation due to Court oversight. F's actions towards M have, on her case, escalated, which increases the risk to [ A] and M when Court proceedings end. (iv) A shared, flexible order as sought by F, will only increase the risk of F confronting M constantly about dates I times of contact, as on M's case F continually seeks to push goal posts. (v) The welfare reports filed, thus far, which have informed the Courts approach to contact between [A] and F, have, to a large extent failed to deal with M's concerns about F's behaviour and how they impact Mand [A], both directly and indirectly. Indeed, the most recent report fails to appropriately deal with concerns of domestic violence raised by Min her fifth affidavit and that despite F accepting that "harsh expressions were uttered by him" the incident is downplayed by [the Social Worker] on the basis that "no one received any physical injury. " Such an approach is clearly old-fashioned and outdated. As such, it is clear to M that, for a proper assessment to be undertaken of the appropriate amount óf time [A] is to spend with F, that a factual matrix needs to be established by the court. (vi) Whilst F has made some admissions, F appears to have no comprehension as to how abusive these are and the impact that the same have had on M and [A]." [2025} CIGC (Fam) 12 - BB v DD re A (a Child) FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15 FAM2023-0150 2025-12-15