All too often, it will be argued by or on behalf of the alleged perpetrator of abuse that as contact has continued with the child/children post the date of the allegations of domestic abuse, a fact-finding hearing is not necessary or proportionate. The recent case of X and Y [2025] is an important reminder that the requirement to consider the necessity of a fact-finding hearing should be at the forefront of minds when allegations of domestic abuse are raised and the mere fact that contact has continued is not a determinative factor.
In this recent case, there were two children, X aged 8 and Y aged 5. Despite the mother making allegations of domestic abuse, the father had been spending time with the children following the parties separation. Father submitted an application to the Court on 27 January 2025 for a Child Arrangements Order. Subsequent to the father’s application to the Court, a further allegation was made by the mother that the father had assaulted one of the children albeit the police had taken no further action.
When the father’s application came before Magistrates at the Court for a First Hearing Dispute Resolution Appointment on 16 April 2025, there was some confusion as to whether they had determined the necessity of fact-finding hearing or not. The terminology in the order from this date was variable and ambiguous.
The matter was reallocated and appeared before DJ Milan on 21 June 2025. At this time, the District Judge determined that a fact-finding hearing was not necessary. The mother went on to appeal this case management decision. The grounds of the appeal were that: the District Judge had failed to consider Practice Direction 12J properly, failed to consider the relevance of allegations of coercive and controlling behaviour and the Court considered irrelevant matters such as ongoing contact with the father following some of the allegations.
As outlined in detail within the judgement of the case [insert link to judgement?], the mother’s appeal was allowed for numerous reasons including:
- The Magistrates had not been in a position to determine whether a fact-finding hearing was necessary. As per Re O [include full citation], the Court is under a constant obligation to consider whether a fact-finding hearing is necessary.
- Contrary to paragraph 17 of Practice Direction 12J, the District Judge had not considered all of the relevant evidence. In this instance, the mother had not filed a statement of evidence.
- The District Judge placed undue weight on the need for direct harm to the children and the necessity of evidence from independent and/or professional third parties. In this case, there were allegations of direct harm and allegations that would constitute transferrable risk as per paragraph 3 of Practice Direction 12J.
- The District Judge placed limited weight on the significance of allegations of coercive and controlling behaviour.
- Whilst the Court can take into account that there had been contact between the alleged perpetrator and child/children post-dating the allegations, this is not determinative on the issue of whether a fact-finding hearing is necessary. A victim of domestic abuse may not realise the nature/extent of the abuse for some time.
In this instance, the Judge went on to consider the necessity of a fact-finding hearing de Novo and ultimately concluded that a fact-finding hearing was not necessary when weighing up Practice Direction 12J, the overriding objective and the admissions made by the father. However, the case of X and Y [2025] is an important reminder that the concept of domestic abuse is not straightforward and there are complexities with the dynamics of abusive relationships that may exist that should not be overlooked. A continuation of contact between the child/children and alleged perpetrator of domestic abuse does not in itself negate the need for a fact-finding hearing and there should always be careful consideration of Practice Direction 12J when allegations of domestic abuse are raised.
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