Fact-Finding Hearings in Private Law: Lessons from ER v NT [2025] EWHC 2146 (Fam)
The High Court’s decision in ER v NT is a significant reminder of the importance of properly applying Practice Direction 12J (PD12J) and the principles in Re H-N (Children) [2021] EWCA Civ 448 when allegations of domestic abuse arise in private law proceedings.
Background
This case concerned an appeal by a mother (ER) against a decision of HHJ Godwin to refuse a finding of fact hearing in proceedings under the Children Act 1989. The father (NT) sought a child arrangements order for contact with their daughter, CT, born in March 2023. The mother alleged a long history of coercive and controlling behaviour, physical abuse, and threats spanning nearly two decades.
The judge at first instance dismissed the mother’s application for a fact-finding hearing, relying on:
- Admissions made by the father.
- The absence of serious allegations postdating CT’s birth.
- The father’s completion of an anger management course.
- Concerns about delay.
The Appeal
On appeal, Mr Justice MacDonald allowed the mother’s appeal, finding that the judge had failed to:
- Give adequate reasons for refusing a fact-finding hearing.
- Properly analyse the nature and relevance of the allegations.
- Apply PD12J and the guidance in Re H-N and K v K [2022] EWCA Civ 468.
- Avoid undue reliance on the father’s attendance at an anger management course.
Key Issues
- Nature of Allegations
The mother alleged a pattern of coercive and controlling behaviour, including threats to kill, physical assaults, and emotional abuse. The father admitted only limited misconduct (drug use, unpleasant comments, and one photo taken without consent). The High Court highlighted the “stark disparity” between the parties’ accounts and stressed that such allegations were highly relevant to welfare decisions. - PD12J and Welfare Analysis
The judgment emphasised that PD12J requires courts to consider:
- The effect of domestic abuse on the child and the resident parent.
- Future risk of harm.
- Whether contact can be managed safely.
The first-instance judgment failed to identify welfare issues or explain why the allegations were not relevant to risk assessment.
- Reliance on Anger Management
The court criticised the weight placed on the father’s completion of a three-day anger management course, noting that such courses do not address coercive control and may even increase risk by reinforcing harmful narratives. - Delay vs. Risk
While delay is a factor, the High Court held that the need for a proper factual foundation outweighed concerns about listing a separate hearing.
Outcome
The appeal was allowed. The case was remitted for a finding of fact hearing before a different judge. The High Court reaffirmed that fact-finding is foundational to welfare decisions and cannot be bypassed where allegations are serious and disputed.
Why This Case Matters
- PD12J is not optional: Courts must engage with its principles when domestic abuse is alleged.
- Historic abuse matters: Patterns of coercive control are relevant even if incidents occurred years ago.
- Admissions must be scrutinised: Limited admissions rarely provide a sufficient factual basis for risk assessment.
- Anger management ≠ domestic abuse intervention: Effective programmes address power and control, not just anger.
💡 Takeaway for Practitioners: Always ensure that allegations of coercive control are properly framed and supported by evidence. Challenge undue reliance on generic courses and highlight the probative relevance of disputed facts to welfare issues.