B (A Child), Re

Factual and Procedural Background

The proceedings concern a child, referred to as V, aged seven. The parents began their relationship in 2010 and cohabited from 2014. By 2018, the mother exhibited signs of an alcohol problem, which worsened, leading her to leave the family home in August 2019, taking V with her. The local authority became involved with V considered a Child in Need. The mother required two hospital detoxifications in 2020, during which V was placed with maternal relatives with the father’s and social services’ agreement. The father initiated proceedings in March 2020 seeking an order for V to live with him; following a contact period in late March, V remained with the father. The mother applied for V’s return, and contact arrangements evolved with the mother eventually caring for V overnight five nights per fortnight.

The central issue is determining V’s primary residence. The father argues V is settled with him, while the mother maintains she was the main carer before and is now able to resume that role. The mother’s claim is supported by allegations of domestic abuse by the father, which the father denies. Both parents agree on substantial unsupervised contact for the non-resident parent.

Allegations of domestic abuse were raised by the mother in 2019 and during the proceedings, falling within the definition in Family Procedure Rules Practice Direction 12J (FPR PD12J). Initial court directions led to a refusal of a fact-finding hearing in 2020, with the issue deferred to the final hearing. Following a 2021 Court of Appeal judgment in Re H-N, the case was reassigned to a District Judge. The District Judge decided no fact-finding hearing on domestic abuse was necessary based on other evidence and the parties’ positions. The mother subsequently sought reconsideration and permission to file a statement from the father’s former partner, Ms A, whose statement echoed the mother’s allegations.

The matter was heard by Recorder Beck in December 2021, who dismissed the mother’s application for a combined fact-finding and welfare hearing and refused permission to admit Ms A’s statement. The Recorder’s order stated that findings of fact were not required on the domestic abuse allegations, relying on PD12J and Re H-N, and that the final hearing judge would consider how to proceed. The mother appealed, and permission was granted. The appeal was dismissed by Peel J in June 2022, who found the Recorder’s decision was within the range of reasonable outcomes and that fact-finding was not necessary. Permission for a second appeal was granted in July 2022, and the case was remitted for further directions.

Legal Issues Presented

1. Whether a fact-finding hearing is necessary and proportionate to investigate allegations of domestic abuse made by the mother in private law child arrangements proceedings.
2. Whether the statement of the father’s former partner, Ms A, should be admitted as evidence in relation to the domestic abuse allegations.
3. How the court should apply the framework set out in FPR PD12J and relevant case law, including Re H-N and Re K, in determining the necessity of fact-finding hearings in domestic abuse allegations within child arrangements cases.

Arguments of the Parties

Appellant's Arguments

• The mother’s allegations of domestic abuse are central to determining which parent is better placed to provide a secure and healthy upbringing for V.
• The lack of investigation into these allegations by the local authority heightens the need for court inquiry.
• The existence of unsupervised contact does not negate the necessity of investigating the abuse allegations.
• The Recorder failed to apply the structured approach mandated by PD12J para. 17 and his order contradicts his reasons by excluding the mother’s case.
• The application to admit Ms A’s statement should be considered together with the question of fact-finding.

Respondent's Arguments

• The Recorder’s decision should be upheld as reasonable and within judicial discretion.
• The “other evidence” relied upon includes s.7 reports showing no current safeguarding concerns for V, justifying no fact-finding hearing.
• The dispute is narrow and academic given agreement on unsupervised contact, similar to the facts in Re H-N.
• There is a competing risk of relapse by the mother to consider.
• Fact-finding would cause delay and exacerbate conflict.
• Ms A’s statement should be excluded even if fact-finding occurs, based on principles restricting similar fact evidence unless it is reasonably conclusive.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognised that the principles governing fact-finding hearings in domestic abuse allegations are well-established under FPR PD12J and supported by the case law in Re H-N and Re K. The court emphasised the necessity to apply the structured approach set out in PD12J para. 17, which requires consideration of various factors including the relevance, proportionality, and necessity of fact-finding in the context of the child’s welfare.

The court identified a discrepancy between the order under appeal, which precluded fact-finding, and the reasoning, which suggested the mother’s allegations would nevertheless be taken into account at the final hearing. This contradiction undermined the clarity and consistency of the decision.

The court found that the Recorder did not fully apply the PD12J framework and failed to properly justify excluding fact-finding on the domestic abuse allegations, particularly given the centrality of these allegations to the welfare assessment. The court also noted that the admission of Ms A’s statement should not be excluded outright and that its admissibility would be a matter for the rehearing judge.

Given these considerations, the court concluded that the matter should be remitted to the Family Court judge allocated to conduct the final hearing, to allow a fresh and comprehensive decision in accordance with the established principles.

Holding and Implications

The court ALLOWED THE APPEAL IN PART and REMITTED the issue to the Family Court for redetermination by the judge assigned to the final hearing.

This decision requires the Family Court to reconsider the necessity and proportionality of a fact-finding hearing on the domestic abuse allegations, applying the structured PD12J framework and relevant case law. The court expressly refrained from expressing any view on the ultimate outcome of the allegations or the case generally. No new precedent was established; the ruling primarily ensures procedural correctness and adherence to established principles in the ongoing proceedings.