ER v NT [2025] EWHC 2146 (Fam)

Mr Justice MacDonald

https://www.bailii.org/ew/cases/EWHC/Fam/2025/2146.html

This case concerned M’s appeal against:

• a decision not to order a fact-finding hearing into allegations of domestic abuse and coercive and controlling behaviour; and
• the ordering of interim contact.

Background

The child, ‘CT’, was born on 22 March 2023 and was two years old at the time of the hearing.

The parties’ relationship began in 2002. M’s position was that the relationship was characterised by F’s psychotic episodes, drug and alcohol misuse, coercive and controlling behaviour, verbal abuse, and physical abuse. There were 34 allegations spanning from 2002 to 2023.

The Hearing Before HHJ Godwin

The safeguarding letter recommended that the court consider PD12J to determine whether a fact-finding hearing was necessary. Further, Cafcass advised that there should be alcohol and drug testing in addition to disclosure from the midwifery team who are alleged to have witnessed the abuse.

At the hearing before HHJ Godwin, F made admissions in response to M’s allegations. The admissions were recited in DJ Godwin’s order. These did not address the alleged physical abuse, threats to kill, kidnapping, or controlling and coercive behaviour.

Further, in F’s response statement, he either:

• made counter-allegations to explain why he acted in such a way;
• made admissions in relation to events around the physical abuse, but not the abuse itself; and
• claimed he could not recall the events.

In effect, F admitted to one instance of verbal abuse, having one psychotic episode, and having substance misuse issues. However, he did not suggest any negative behaviour stemmed from said issues.

The Judge determined that the court had sufficient information to determine the risk F posed to M and CT, and a s.7 report was ordered instead of a fact-finding hearing. It was decided that sufficient information could be gleaned from F’s admissions, and information was not needed on the more serious allegations, as they post-dated CT’s birth and there had been contact between CT and F after the events were alleged to have occurred.

The Judge also noted that F had addressed his substance misuse and anger issues. An anger management specialist had commented that he was considerably impressed by him, but this was not specifically in relation to domestic abuse and instead focused on anger management.

The grounds of appeal:

• Adequate reasons were not given for not ordering a fact-finding hearing.
• The Judge was wrong not to specifically address PD12J.
• The Judge failed to conduct an analysis of the evidence and gave undue weight to some of the evidence.
• The Judge was wrong to place reliance on the course completed by the father with ‘Anger Planet’.
• The Judge failed to consider PD12J before making an order for indirect contact.

Grounds 1, 3 and 4:

HHJ MacDonald restated the approach in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 and K v K [2022] EWCA Civ 468. He confirmed that the court must identify the welfare issues that arise in each case, and understand the nature of the allegations to decide whether facts need to be determined.

It was decided that HHJ Godwin had not identified the welfare issues sufficiently, as he had only said that F was seeking contact. At [67], HHJ MacDonald set out the seven welfare issues in the case. These included the safety of both CT and M, how that could be secured, and whether the process was being used as a form of domestic abuse.

The failure to identify the issues and understand the nature of the allegations led to the evidence not being considered properly, per ground 3. The Judge did not consider the physical abuse and threats, nor did he consider controlling and coercive behaviour, which M alleged lasted over two decades. Because of the limited consideration and understanding of M’s allegations, the Judge put too much weight on F’s admissions and deemed them sufficient to negate the need for a fact-finding. As noted by HHJ MacDonald, there was a “stark disparity” between the allegations and admissions.

HHJ MacDonald also determined it was wrong not to have considered the older allegations, as they were indicative of a pattern of behaviour. This again stemmed from not properly identifying the welfare issues and understanding the allegations.

Count 4 was also determined in M’s favour. The Judge had indeed placed too much weight on the completion and subsequent report from the “Anger Planet” course. The issues were:

• it was not clear what admissions had been made on the course;
• the course was not to address domestic abuse, but to regulate emotions and behaviour rather than address beliefs and values,
• the domestic abuse credentials of the author of the report were unknown; and
• the report still showed F was deflecting blame.

Ground 2:

HHJ MacDonald set out that the approach in PD12J is indeed obligatory. However, it was not necessary to specifically refer to PD12J in a judgment when a sealed order recited that PD12J had been considered, and the leading cases had been referred to in both parties’ notes.

Ground 5:

HHJ MacDonald was satisfied that PD12J had been considered. The indirect contact regime was proposed by M, and the order contained significant safeguards to protect both M and CT, which were deemed sufficient.

ED v MG [2025] EWGC 1876 (Fam)

Mr Justice  McKendrick

https://www.bailii.org/ew/cases/EWHC/Fam/2025/1876.html

The matters before the court were whether to grant M’s application for a declaration of non-parentage and to determine the child arrangements.

Background

M and F were in a relationship when M underwent IVF. They began IVF using F’s sperm and M’s eggs, but eventually moved on to using donor sperm and her eggs. The clinic was based in Northern Cyprus and was unlicensed. The parties signed a consent form, which set out that F would be the legal father but not the biological one. The parties had not sought legal advice in the UK on whether he would legally be classified as the child’s father.

The child, ‘D’, was born in June 2022. Both parties were registered on the birth certificate in the UK. Their relationship ended a year after D was born, but they continued to coparent.

Proceedings:

F applied for a lives with order, and M applied for a PSO to prevent F from removing D from the jurisdiction. The hearing took place under the normal s.8 regime. M then applied for a declaration of non-parentage. M suggested she did not understand the effect of registering F on the birth certificate.

M also sought a lives with order in her favour, alleging that there were concerns as to F’s mental health and his sexual boundaries with D.

F’s position was that he should remain on the birth certificate as D’s legal father. He also wanted a joint lives with order to recognise his relationship with D.

The ISW could not identify any evidence which would suggest F posed a risk to D. They noted that M was overly anxious and hypersensitive, and they were concerned about M minimising F’s role in D’s life. In turn, the ISW endorsed a joint lives with order.

The Decision:  

Foreshadowing the final determination early on in their judgment, HHJ McKendrick sets out how important parentage is to our identities and that it comes in many forms, noting the “psychological parent” who makes an important contribution to the welfare of a child.

The Judge cited P v Q [2024] EWCA Civ 878 as authority for legal parentage not arising from registration on the birth certificate itself. It was only evidence of parentage, but it did not create a presumption.

Under s.55A(5) and s.58(1) FLA 1986, the court must first determine whether consideration of the application is not in the best interests of the child. Secondly, under s.58(1), the declaration will be made unless it is manifestly contrary to public policy.

F invited the court to dismiss the application as it would emotionally and psychologically harm the child. The Judge decided that there was little or no evidence of this, as F and D had a very close bond already. The threshold for not being in a child’s best interests is high. For example, a threat from a child to end their life if the application is decided. Although the Judge noted that the circumstances need not be that extreme, it is clear that the threshold is a high one.

F also argued that practical issues would flow from a declaration of non-parentage, e.g. D’s right to Irish citizenship, a lack of entitlement to child maintenance, and the right to inherit from him. Again, these reasons did not meet the high threshold for not determining the application.

Ultimately, the Judge considered it was in D’s best interests to determine the application as it is important to know one’s parentage.

The questions before the court were both of fact and law. The question of fact was whether F was D’s biological parent. There was no dispute over this.

The Judge then went on to decide the question of law. This was whether the common law position could be displaced. The parties agreed that F could not be the legal father under sections 36, 37, or 38 of the HFEA 2008, as the parties were not married, the treatment was not within the UK, and at an unlicensed clinic. The common law could not be displaced, given that each legal route pointed to F not being the father.

When looking at public policy arguments which ran contrary to making a declaration under s.58 FLA 1986, the Judge explained that there were none. In fact, public policy would suggest making the declaration of non-parentage as the birth Register needed to be accurate.

The question of PR was raised by the Judge. Only a “father” obtains PR if they are named on the birth certificate, and it was declared that F was not D’s legal father. Instead, the Judge granted PR by way of s.12(2A) CA 1989 due to the risk that M would marginalise F’s role in D’s life.

The Judge wanted to endorse diverse forms of parenthood and thought it “better that he had two loving parents who can exercise parental responsibility to protect him.” A joint lives with order was also granted.

In essence, the court has now set out that if a person is (1) not a biological parent; (2) they are not married/civilly partnered to the other parent; or (3) the fertility treatment is not based in the UK and at an unlicensed clinic, then they are unlikely to obtain a declaration of parentage in their favour.

AA v XX [2025] EWHC 2165

Mrs Justice Lieven

https://caselaw.nationalarchives.gov.uk/ewhc/fam/2025/2165

This case concerned M’s application for committal of F for breaching various return orders and orders for contact between M and the child, ‘B’.

Background

In 2020, F came to the UK as an asylum seeker. He was granted asylum and the right to work on 8 June 2022. On 7 December 2023, M and B joined F in the UK. B was aged 11 at the time of the committal hearing before Mrs Justice Lieven.

On 10 January 2024, M and B went to Iran for a holiday. On this holiday, B was abducted by the paternal uncle at Tehran Airport. He was able to do so by threatening M with a gun. M returned to the UK immediately in order to secure B’s return.

The proceedings

There were 13 hearings in this case, and the father was a litigant in person for all bar one, despite the court reminding him that he would be able to obtain legal aid for the committal proceedings.

On 11 July 2024, B was made a ward of court, and the court made an order for contact between M and B.

A return order was made on 11 October 2024. F was to return B by 8 November of that year, and he was to replace B’s Iranian passport. None of this occurred subsequent to the order.

On 15 November 2024, a further return order was made, and directions for a potential committal application were made. M’s committal application was issued on 8 January 2025.

On 2 April 2025, a further contact order was made setting out the precise steps to be taken. Again, no contact took place.

On 12 June 2025, Mr Justice Trowell made another return order. At this hearing, F admitted to the court that, with his agreement, B could be returned. Mr Justice Trowell also ordered interim contact between M and B, which did not take place.

On 16 July 2025, the committal application was made, setting out the breaches alleged.

At the committal hearing before Mrs Justice Lieven, F would not enter the courtroom unless various conditions were met. When F did attend, he raised his voice. This behaviour had been a theme throughout the proceedings; thus, security attended the committal hearing due to the genuine concerns for court staff and counsel’s safety.

The decision

Given F’s partial absence from the courtroom, Mrs Justice Lieven had to decide whether to continue committal proceedings in his absence. She decided she could do so per Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed (Committal: Sentence) [2024] EWHC 2230 (Fam) and articulated that “the deliberateness of the father’s absence could hardly be clearer.”

The Judge found that there were nine breaches of the orders. Mrs Justice Lieven noted an important feature of this case was that F was not saying he was unable to return B. Instead, he had suggested that B could be returned under certain conditions, including an apology and return of gold jewellery. He had also suggested that he would not allow any contact until his demands were met.

Although the burden of proof was not on F, the Judge could take into account the fact that F put forward no explanation as to why he had not complied with the orders.

Mrs Justice Lieven restated that sentencing in committal proceedings has two key objectives: the first is to mark the court’s disapproval, and the second is to secure compliance with the order (Hale v Tanner [2000] EWCA Civ 5570).

The Judge also restated the principles in Oliver v Shaikh [2020] EWHC 2658 (QB), that a sanction should only be imposed where the court is satisfied that the contempt was so serious that no other penalty is appropriate, and that a suspended sentence is equally a prison sentence. However, she also cited the more recent case of B (a child) (Sentencing in contempt proceedings) [2025] EWCA Civ 1048, which emphasises the importance of parties complying with court orders.

In terms of the sentence, Mrs Justice Lieven was unequivocal that there should be a custodial sentence. The history of the matter indicated this would be the only way to secure F’s compliance with orders. F had made it clear throughout proceedings that he thought he could do as he wished, and the court was not an authority he was bound by.

The court also needed to impose a custodial sentence in order to show its displeasure at the “complete and deliberate” breaches of orders. Suspending the sentence was not considered appropriate given the various opportunities F had been given to comply, and a six-month sentence was ordered.