Factual and Procedural Background
The appeal arises from a decision of the lay Magistrates in the Family Court in The City on 12 June 2023, where they vacated a fact finding hearing concerning a dispute between the parents over a child arrangements order. The parents began their relationship in 2015, married in 2016, and have two children: the older child born in September 2016 and the younger in October 2021. The Mother alleged early and ongoing abusive behaviour by the Father, who admitted to some verbal abuse but attributed much responsibility to the Mother's conduct.
In April 2022, the Mother left the family home with the children, alleging the Father threatened to kill her, leading to his arrest and bail. A non-molestation order was obtained ex parte and later made final by agreement without admissions or findings. In May 2022, the Father applied for a child arrangements order for the children to live with him. Procedural delays followed, including safeguarding recommendations by Cafcass for a fact finding hearing.
At a January 2023 hearing, the Mother sought to add an allegation of physical abuse. The Magistrates ordered a fact finding hearing limited to physical abuse allegations, with directions for filing a Scott Schedule and evidence. The fact finding hearing was scheduled for June 2023. Prior to that hearing, the Father's solicitors questioned its necessity given the Father's admissions, which were qualified and linked to the Mother's behaviour, and the Mother’s extensive recordings and transcripts.
At the June 2023 hearing, the Mother sought an adjournment to file further evidence, but the Father argued the fact finding hearing was unnecessary. The Magistrates discharged the fact finding hearing order, citing the volume of evidence including admissions and recordings, and considered a fact find would not assist in determining child arrangements.
The Mother filed an application for permission to appeal on 26 June 2023, which was out of time by seven days. Subsequent procedural steps included directions to extend time, applications to vary interim contact arrangements, and an application for an intermediary assessment. The appeal hearing was delayed multiple times and finally took place on 18 December 2023, approximately 18 months after the original application.
Legal Issues Presented
- Whether the application to extend time for permission to appeal should be granted.
- Whether the Magistrates failed to consider paragraph 5 of Practice Direction 12J ("PD12J").
- Whether improper weight was given to the Father's admissions.
- Whether there was a breach of the Mother's right to a fair hearing.
- Whether the Magistrates failed to follow paragraphs 17 and 18 of PD12J.
- Whether there was a lack of evidence to support findings made against the Mother.
- The Mother's applications for an intermediary assessment and to vary interim contact arrangements.
Arguments of the Parties
Appellant's Arguments
- The Mother contended that the Magistrates failed to properly consider the guidance in PD12J, particularly paragraph 5 and paragraphs 17 and 18.
- She argued that improper weight was given to the Father's admissions and that her right to a fair hearing was breached by the decision to vacate the fact finding hearing.
- The Mother asserted that findings were made against her without sufficient evidence.
- She sought an extension of time for the appeal, an intermediary assessment to assist her participation, and variation of interim contact arrangements due to concerns about supervision.
Respondent's Arguments
- The Father argued that the fact finding hearing was no longer necessary given his admissions and the evidence before the court, including recordings and witness statements.
- He accepted the court could change its earlier case management decision but maintained that the decision to vacate the fact finding hearing was appropriate and proportionate.
- The Father opposed the need for an intermediary assessment and changes to contact supervision, emphasizing the stability provided by current arrangements.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Denton v TH White Ltd. [2014] EWCA Civ 906 |
Three-stage test for relief from sanctions and non-compliance with procedural rules. |
The court applied the Denton test to determine whether to grant an extension of time for the appeal, finding the short delay and solicitor error justified relief. |
| Mitchell v News Group Newspapers [2014] 1 WLR 795 |
Predecessor authority to Denton on relief from sanctions. |
Referenced as part of the procedural framework for considering extensions of time under Civil Procedure Rules. |
| Re H-N [2021] EWCA Civ 448 |
Guidance on fact finding hearings in cases involving domestic abuse allegations. |
Used to emphasise the court's discretion to determine necessity and proportionality of fact finding hearings. |
| K v K [2022] EWCA Civ 468 |
Clarification of the role and limits of fact finding hearings in private law cases involving domestic abuse. |
Guided the court in confirming the Magistrates’ discretion and that fact finding hearings are not mandatory in every domestic abuse allegation. |
| Re H (Minors) (Sexual Abuse) 1996 AC 563 |
Requirement for threshold findings in public law cases under the Children Act 1989. |
Distinguished public law cases from private law cases, highlighting differences in fact finding requirements. |
Court's Reasoning and Analysis
The court first addressed whether the application to extend time for permission to appeal should be granted. It held that the Magistrates’ decision to vacate the fact finding hearing was a case management decision subject to a seven-day appeal period. The Mother’s appeal was seven days late. Applying the Denton three-stage test, the court found the delay serious but short, caused by legal advisors, and that extending time was appropriate given the interests of justice and the child’s welfare.
Regarding the grounds of appeal, the court considered the relevant provisions of PD12J and authoritative Court of Appeal decisions, particularly K v K. It emphasized that PD12J is guidance, not binding law, and that the Magistrates have broad discretion to decide whether a fact finding hearing is necessary and proportionate. The court found the Magistrates gave sufficient reasons for vacating the fact finding hearing, relying on extensive evidence including transcripts and witness statements, thereby enabling Cafcass to prepare a s.7 report.
The court rejected the claim that the Magistrates gave improper weight to the Father’s admissions, clarifying that the Magistrates were not making final findings but deciding on the necessity of a fact finding hearing. It noted the overlap between factual and welfare considerations in private law cases, where a separate fact finding hearing may be unhelpful or unnecessary.
The court dismissed the allegation of breach of the Mother’s right to a fair hearing, finding no procedural irregularity in the Magistrates’ change of decision, which was done with full notice and within their discretion. It also rejected the claim that findings were made against the Mother without evidence, as no such findings were made.
On the Mother’s application for an intermediary assessment, the court found no evidence suggesting she could not participate fully with appropriate procedural accommodations. It proposed measures to support her participation at the final hearing. Regarding supervision of contact, the court noted mutual distrust between the Mother and contact supervisors but found the current arrangements appropriate and proportionate, cautioning against destabilizing the children by changing supervisors or increasing supervision intensity without clear justification.
Holding and Implications
The court granted an extension of time for the Mother to apply for permission to appeal the Magistrates’ case management decision.
On the merits, the appeal was dismissed. The Magistrates’ decision to vacate the fact finding hearing was upheld as a lawful and reasonable exercise of discretion, consistent with PD12J guidance and binding Court of Appeal authority. No procedural unfairness was found.
The court refused the Mother’s application for an intermediary assessment as unnecessary and declined to vary interim contact arrangements, maintaining the status quo to avoid destabilizing the children.
The decision directly affects the parties by allowing the case to proceed without a separate fact finding hearing and confirms the appropriateness of current contact supervision. No new legal precedent was established; rather, the court applied established principles emphasizing judicial discretion, procedural fairness, and the welfare of the children in private law disputes involving domestic abuse allegations.