Private Children Law Case Update – Winter 2026

ER -v- NT [2025] EWHC 2146 (Fam)

This case concerned an appeal made by the mother in respect of the lower court’s refusal to list a fact-finding to determine allegations of physical abuse, verbal abuse and coercive and controlling behaviour.

The appeal was held, the High Court having concluded that the lower court had not given sufficient reasons as to why it dismissed the mother’s application for a fact-finding, did not conduct an adequate analysis of the evidence and/or gave undue weight to some of the evidence, and was wrong to place reliance on the course completed by the father.

Background

The parents were in a relationship for two decades, which the mother contended was characterised throughout by a litany of domestic abuse, coercive and controlling behaviour, and substance misuse. By the time of the appeal, the mother had set out no less than 33 allegations of abuse. These included having a knife put to her throat, repeated physical assaults including restricting her breathing, kidnapping, threats to kill, and coercive and controlling behaviour. Almost all the incidents had allegedly taken place before the birth of the subject child, CT, on 22^nd March 2023, but ostensibly serious matters had taken place after the child’s birth.

Cafcass recommended, inter alia, that the court consider the terms of PD12J to determine the necessity of a fact-finding hearing.

At the hearing on 15^th August 2024, the father made admissions as to substance misuse and partial admissions to a small number of incidents that may be considered as controlling in nature. He did not, however, make any admissions to the allegations summarised in the above paragraph. Later, in his response to the mother’s schedule of allegations, the father continued to deny that serious incidents of abuse had taken place. He made further admissions relating to substance misuse but these did not extend to the impact on his behaviour towards the mother. The father also admitted to suffering from a single psychotic episode, which fell short of the six episodes alleged by the mother. Finally, he admitted to accusing the mother of having an affair with a colleague but denied that amounted to controlling behaviour. The father again denied the most serious allegations.

By the hearing of 14^th February 2025, the father had completed a three-day course with “Anger Planet” to address his substance misuse and anger management issues. The judge at that hearing gave an ex tempore judgment in which he refused to direct a fact-finding. His refusal was made on the basis of the Anger Planet course having been completed, the father having made “sufficient admissions”, that none of what the judge characterised as the serious allegations post-dated the birth of CT, and that a fact-finding would cause undesirable delay. The judge in their judgment did not refer to PD12J (although references were contained in each party’s position statements and the recital was within the order), leading authorities on fact-findings, or conduct an analysis of the evidence. The court at that hearing adopted the mother’s interim proposals for indirect contact, namely pre-recorded videos of the father that a third-party would show to the child.

The Appeal

The mother relied on five grounds of appeal against the order dismissing her application for a fact-finding and ordering interim contact:

1. The judge failed to give adequate reasons for dismissing the mother’s application.
2. The judge was wrong in failing to explicitly address PD12J.
3. The judge failed to conduct an analysis of the evidence and/or gave undue weight to some of the evidence.
4. The judge was wrong to place reliance on the anger management course completed by the father.
5. The judge failed to consider PD12J before making an interim child arrangements order.

The first ground was relied upon within the context of the requirement for judgments to articulate the legal test applicable and thereafter the process of evaluation and the reasons for the outcome. The mother submitted that in those circumstances omitting to consider PD12J and the guidance set out in H-N and K -v- K was a grave omission.

Similarly, in relation to the second ground, the mother submitted that omitting to make any reference to PD12J and the guidance set out in the authorities meant the judge failed to analyse the mother’s allegations within the context of PD12J. It was put that, had the judge applied the required approached, they would have correctly assessed the allegations as amounting to a course of longstanding coercive and controlling behaviour. It was further submitted that the judge would have therefore concluded that a fact-finding was necessary in circumstances where the allegations made were serious in nature and were relevant to the issue of contact, with findings being necessary to provide an accurate assessment of future risk to CT and any impact of abuse on the child and mother. The mother argued that the father’s admissions fell far short of being an acceptance of the alleged circumstances and were not representative of the serious harm alleged that would be relevant to an accurate risk assessment.

As for the third ground, the mother submitted that, had the judge applied the correct approach and followed the observations made in H-N, they would not have fallen into the trap of considering past abusive behaviour as somehow assuaging the risk of future harm. That is no longer an acceptable position for courts to take; a pattern of coercive and controlling behaviour can persist and manifest itself in ways that impact on the future welfare of the child. Further, the contention that no serious allegations of abuse post-dated the birth of the child was demonstrably wrong, and the partial admissions made by the father neither addressed the allegations of abuse nor provided a sufficient factual foundation for an accurate assessment of risk required pursuant to paragraph 37 of PD12J.

Regarding the fourth ground, the mother submitted that the Anger Planet course was not an appropriate intervention for perpetrators of domestic abuse, per paragraph 44 of the Cafcass Domestic Abuse Practice Guidance. Undue weight had been placed on this by the judge when considering there was nothing confirming the nature and extent of admissions made on the course to  domestic abuse, it was a three-day course falling far short of what one would expect in a 25-week DAPP, it was not stated whether the expert on the course had the experience of qualification to address domestic abuse, and the contents of the report demonstrated that the father blamed the mother for her part in what he contended was “a toxic up and down relationship.”

Finally, in respect of the fifth ground, the mother submitted that in the context of the admissions the court did not have regard to paragraphs 35-37 of PD12J and omitted to assess the impact on the mother of making an interim child arrangements order when cognisant of her diagnosis of PTSD.

The father opposed the application, referencing the case of TRC -v- NS [2024] EWHC 80, as well as submitting that the judge had a wide discretion on whether to list a fact-finding pursuant to the leading authorities.

Discussion and Judgment

The court considered Re F (Children) [2016] EWCA Civ 546,  Re B (Adequacy of Reasons) EWCA Civ 407, the leading Court of Appeal authorities, and PD12J when considering the lower court’s judgment. For various reasons, the court did not accept the father’s submission that it should approach the appeal based on the decision in TRC -v- NS [2024] EWHC 80, including that it was at odds with Re B, H-N, and K-K.

The court was satisfied that the appeal must be allowed. It took Grounds 1 to 4 in the whole. In terms of Ground 2, the court was not satisfied that the judge was wrong in omitting to specifically refer to PD12J in his judgment. That was tempered, however, by the above authorities that make clear the judge must give sufficient reasons to explain why they have reached their decision. In the circumstances, the judgment of the lower court did not sufficiently identify or analyse the welfare issues in the case, nor examine the nature of the disputed allegations.

The impact of such an omission was amplified by the judge treating the father’s limited admission as negating the need for a fact-finding; it did not provide a sufficient factual basis on which to proceed. The judge did not consider the wider context of the mother’s allegations, which might establish a pattern of coercive and controlling behaviour that would necessarily impact the assessment of risk. Had the judge down so, the court was satisfied that they would have concluded the limited nature of the father’s admissions as not having provided a sufficient factual foundation for an accurate assessment of risk required under paragraph 37 of PD12J.

Further, the significant weight placed on the report from Anger Planet was misplaced. The report could not accord the significance attached to it per Cafcass’ guidance, and its contents raised a number of concerns as to the father’s acceptance of and insight into his abuse.

The court was satisfied that Grounds 1, 3, and 4 of the mother’s grounds of appeal were made out. The court was not satisfied as to Ground 2, nor Ground 5 in circumstances where it was the mother’s indirect contact proposals that were adopted by the court. The court listed a fact-finding hearing under its case management powers, having considered the delay caused by taking such action was outweighed by the need to establish a proper factual foundation for the court’s welfare decisions.

ZA -v- YB [2025] EWHC 1869 (Fam)

The father appealed against the extension by three years of a s.91(14) order on the basis that there were serious procedural irregularities.

The appeal was held, the High Court having concluded that a litigant in person (as the father then was) not being given any notice of a three-year extension, and not having been made clear his right to apply to vary, set aside or stay the order, amounted to a serious procedural irregularity.

Background

Protracted Children Act proceedings had taken place, in which a child’s Guardian was appointed. The father had been sentenced at Lewes Crown Court on 25^th October 2019 to an immediate custodial term of imprisonment lasting two-and-a-half years and was made the subject of a ten-year restraining order for stalking the mother. At a fact-finding hearing in the family court on 20^th March 2020, the father was found to have behaved in an abusive way towards the child and made multiple emotionally and psychologically abusive comments to him, to have been controlling and coercive towards the mother, and that he had stalked and harassed her.

Following the final hearing on 17^th March 2021, the judge limited father’s contact to three cards or letters per year and imposed a s.91(14) order lasting for four years (until 17^th March 2025). The judge reserved the matter to themselves. The father’s application for permission made in 2022 was refused by the judge.

On 25^th June 2024, the father made a further application for permission to bring a child arrangements order application. The judge again refused permission but also extended the s.91(14) order by a further three years; i.e., until 17^th March 2028. The reason for doing so was that the father would immediately issue an application if allowed to do so, which would cause a high level of harm to the mother and child. The court noted that the child would be 14 years old by 17^thMarch 20208 and therefore better able to express his wishes and feelings in respect of contact with the father.

The court extended the s.91(14) by its own motion and without having warned the parties of that intention; the father was at that point a litigant in person. The father’s right to apply to vary, set aside, or stay the decision was also not contained within the order.

The Appeal

The court dealt solely with Ground 1 of the appeal and was not minded adjourning the matter due to the lateness of the appeal bundle; the court was satisfied that the respondent’s Counsel was able to make submissions in response to Ground 1.

Ground 1 was that the decision was unjust due to serious procedural irregularity. It was submitted that it offended natural justice for the judge to have made a significant s.91(14) order for a further three years when the father had no knowledge of that being considered by the court and no opportunity to make representations. In support of that submission, the father relied on Re T (A Child) (Suspension of Contact) (s.91(14) Ch A 1989) [2016] 1 FLR 916, where at paragraphs 50 and 51 it is stated:

”50.  Orders under this subsection are very much the exception not the rule, and only where the welfare of the child requires it, having regard to the guidance given by this Court in Re P (Section 91(14) Guidelines)(Residence and Religious heritage) [1999] 2 FLR 573 . Given the significant implications of this statutory intrusion into a party’s ordinary ability to access justice, it is imperative that the Court is satisfied that the parties affected:

1. Are fully aware that the Court is seised of an application, and is considering making such an order; 
2. Understand the meaning and effect of such an order;
3. Have full knowledge of the evidential basis on which such an order is sought; 
4. Have had a proper opportunity to make representations in relation to the making of such an order; this may of course mean adjourning the application for it to be made inwriting and on notice.

51. These fundamental requirements obtain whether the parties are legally represented or not. It is, we suggest, even more critical that these requirements are observed when the party affected is unrepresented. Observations to this effect were made by Wall LJ in Re C (Litigant in Person: Section 91(14) Order) [2009] EWCA Civ 674 [2009] 2 FLR 1461 , who added:

”Where the parties are both or all in person, there is a powerful obligation on any court minded to make a s 91(14) order to explain to them the course the court is minded to take. This will involve the court telling the parties in ordinary language what a s 91(14) order is; and what effect it has, together with the duration of the order which the court has in mind to impose. Above all, unrepresented parties must be given the opportunity to make any submissions they wish about the making of such an order, and if there is a substantive objection on which a litigant wishes to seek legal advice the court should either normally not make an order; alternatively it can make an order and give the recipient permission to apply to set it aside within a specified time”. (emphasis by underlining added).”

Discussion and Judgment

The court noted there was no notice at all to the in-person father who was entitled to natural justice, notwithstanding his ignominious history of harassment and abuse. A significant order was made without him having an opportunity to make representations, nor did it make clear his rights in challenging the order.

The court was satisfied there were procedural irregularities that rendered the order unjust such that is should be set aside. There was no need to consider Grounds 2 and 3. The court having given notice of its intention to extend the s.91(14) order and having received brief representations from both Counsel, exercised its powers to extend the order by its own motion to cover the hearing remitted to the lower court.

C -v- S [2025] EWFC 254 

In a rare example of costs being awarded within private law proceedings, the mother was ordered to pay half the father’s costs.

The court found that:

1. F should exceptionally be granted a costs order due to the extent of the unreasonableness of M’s overall conduct;

2. The proportion of costs that F should be awarded is 50 per cent, being reduced from the amount claimed by:

a. 30 per cent due to the extent M succeeded in the case;

b. A further 20 per cent because of her ongoing requirement to pay two-thirds of the contact supervision costs and her psychological make-up;

3. The figure from which 50 per cent should be calculated must exclude the costs of F’s representation at any hearing where no order for costs was made;

4. There must be detailed assessment if costs are not agreed.

Background and Application

The appeal was brought in the backdrop of over a decade of separate children proceedings, which had included an eight-day fact-finding at which the mother was described as having “actively sought to recruit the children in her efforts to create a narrative of sexual abuse”, as giving evidence that was “entirely disingenuous”, and has having “deliberately manipulated the facts, manipulated the children, manipulated professionals and individuals.” 

The mother had been robustly criticised by judges throughout various proceedings, particularly in respect of her credibility and for placing her needs above the children’s. Of significance, a global psychological assessment of the family was conducted following a Part 25 application by the father. The mother’s contact with the children had at this stage been reduced to in-person supervised contact once a month, which was something of a success she had achieved when compared to her previous position.

Discussion and Judgment

The applicable law was noted as having been recently stated in E (Children: Costs) [2025] EWCA Civ 183, with specific reference to paragraphs 23-24:

“Orders for costs in proceedings about children

23. There is a general practice of not awarding costs against a party in family proceedings concerning children, but the court retains a discretion to do so in exceptional circumstances. These include cases in which a party has been guilty of reprehensible or unreasonable behaviour in relation to the proceedings. This practice applies equally in public law and private law proceedings, and irrespective of whether a party is legally aided. Nor is there any difference in principle between fact-finding hearings and other hearings. The court can make costs orders at any time: FPR 28.1.
24. These propositions can largely be extracted from the decision of this court in the private law case of R v R (Costs: Child Case) [1997] 2 FLR 95 (Staughton LJ and Hale J) and the decisions of the Supreme Court in the public law cases of Re T (Children) (Costs: Care Proceedings: Serious Allegation Not Proved) [2012] UKSC 36, [2013] 1 FLR 133 and Re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20, [2015] 2 FLR 208 .”

The court emphasised that the general rule in CPR Part 44 did not apply and that costs would only be awared in exceptional circumstances involving unreasonable conduct, which was an objective test.

The father asserted that M had acted unreasonably in several regards and the court made the following findings:

• Within the context of the case, particularly the toll proceedings had taken on the children and the previous warnings given to her by the court, it was unreasonable for her to have refused to explore ADR.
• Given the judgment of the court that the mother was likely to have caused emotional harm to the children, her objection to the principle of instructing an expert to conduct a global psychological report was unreasonable. She sought to shield herself from expert assessment and criticism but hid behind what she purported to be the best interests of the children.
• The mother sought a tactical advantage in litigation by contriving to sit back and allow the father to make allegations before she responded with her own schedule; either she had allegations relevant to the issue of welfare or she did not. The expert found no evidence that the father had tried to alienate the children, contrary to the mother’s assertions, and the father’s conduct was previously described by the court as constructive and reasonable. The court found that the mother’s conduct regarding the schedule was plainly unreasonable and she deliberately departed from the court’s order for her own benefit.
• The mother’s failed application for a s.91(14) order was not unreasonable, given the concern that the child be shielded from further litigation from whatever quarter.
• The mother had taken an unreasonable stance in respect of previous court bundles by, for example, not agreeing that previous judgments should be included.
• The mother had acted unreasonably in several regards by imparting false or misleading information, including to the court in respect of false allegations. She also shared information/orders with the children’s school and the contact supervisor without the permission of the court; she had similarly acted unreasonably during a contact session.
• The mother unreasonably persisted with allegations of parental alienation, in lieu of any findings and after expert evidence to the contrary.
• The mother’s inability to accept the previous decisions and findings of the court played an important part in the overall unreasonableness of her conduct.

The court was with the father on the principle of costs but costs were to be removed in respect of hearings at which an order for no order for costs was made. In terms of quantum, or the proportion of costs, the court also noted that the mother had succeeded in some part by achieving some in-person contact, but that she had overall lost. A reduction of 30% was therefore applied. The court was not, however, convinced that M would be driven into bankruptcy by a costs order, but did consider that a 20% reduction should be applied as she was paying two-thirds of the supervision costs.

The 30% and 20% were added to one another, meaning the court therefore awarded the father 50% of his costs. A detailed assessment was ordered, if costs were not agreed.