Further to our post on the Court of Appeal judgment in April 2022, ‘K v K – Court of Appeal give guidance on fact-finding hearings and on MIAMs’, here is an in-depth analysis of the developments in the Re K case.

Many thanks for this guest post by Charlotte Baker, a specialist children law barrister at 4PB Chambers, @CharlotteNBaker on X/Twitter

There have been two significant decisions  in the Court of Appeal since 2021 on  how family courts deal with allegations of domestic abuse:

1. The first was Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA 448, a collection of four cases which involved appeals related to fact-findings hearings. Re H-N was heard by the Court of Appeal in January 2021 and its decision was handed down in March 2021.

2. The second was Re K [2022] EWCA Civ 468. It featured two of the same judges who had decided Re H-N (the President of the Family Division and Lady Justice King) as well as Sir Geoffrey Vos, the Master of the Rolls, who delivered the judgment of the Court of Appeal in Re K.  By the time that Re K came before the Court of Appeal, there had been a fact-finding hearing which concluded the father had behaved in an abusive way towards the mother (we will come back to that later) and a final hearing at which the court decided that the children’s contact with their father should be limited to letters and cards.

Re K was widely interpreted by those involved in the Family Court as an attempt to try to stem the steady flow of fact-finding hearings that appeared to be being listed following Re H-N. It was a judgment that was specifically designed to give “general guidance” and recorded the Court of Appeal’s concern that a misunderstanding had developed in the role of the Family Court in fact-finding. I know there is a difference in opinion between those who work in or around the Family Court as to whether Re H-N and Re K-K are compatible (my view, for what it is worth, is that they are not), but that is a debate for another day. The relevance of all of this insofar as the K family is concerned is two-fold:

1. The Court of Appeal considered DJ Capon’s decision to list a fact-finding hearing: “at least, premature” [para 44] and the general impression you are left with after reading that judgment is that there should not be a fact-finding hearing full-stop, but instead the parents should mediate, which leads be onto the second relevant point insofar as the Ks are concerned…

2. … much of the Court of Appeal’s judgment and therefore “general guidance” focusses on a summary of the court’s powers in relation to non-court dispute resolution, and how and when that should be considered once a parent has made an application to the court. The Court of Appeal thought that – with the benefit of hindsight – the issues that caused the father to issue his application in the first place were logistical rather than to do with the principle of overnight contact (although that relates only to the younger children, it seems) and probably could have been effectively resolved through mediation [para 27]. At the end of the judgment, the Court of Appeal encouraged the parties to consider whether there was room for compromise in the best interests of their children [para 81]. This is an important issue and we will come back to it, but it gives you an idea of the way the Court of Appeal viewed the case generally, and how they viewed the tenor of the mother’s allegations.

So, what happened next? Well until recently, we did not know whether the Ks had resolved everything without further input from the Family Court, as the Court of Appeal had very much encouraged them to do, or whether their lives had continued to be dominated by litigation. Now we know, because a few weeks ago two decisions of HHJ Gordon-Saker (a Circuit Judge) appeared on TNA. The fact-finding judgment is available here and the final welfare judgment is available here.

It seems that after its time in the Court of Appeal, the case returned to the Family Court sitting at Cambridge, was allocated to HHJ Gordon-Saker, and thereafter trod a very similar path to the one it had gone down before it came before the Court of Appeal. There was another fact-finding hearing (but with a different focus) at which findings of abusive behaviour were made against the father, and another final hearing, at which it seems HHJ Gordon-Saker made largely the same order as DJ Capon had in 2021, with the added sting of an order preventing the father from making any applications to the Family Court in respect of the children for three years.

I think it is useful and important to understand the twists and turns of the litigation, so I have set them out in a section at the end of this post based on what I have been able to pick together from the judgments available. The K litigation throws up a number of interesting points, but I have limited myself to just two:

1. How did we get to the same outcome twice? This question is virtually begging to be asked, given the final welfare decisions of DJ Capon and HHJ Gordon-Saker were so similar.
2. Could mediation have helped? Spoiler: my view is that it would not have done, in light of the findings that HHJ Gordon-Saker made about the dynamic of the relationship and the father’s dictatorial and controlling ways, but given the focus on mediation in the Court of Appeal’s judgment, again it is an unavoidable question.

How did we get to the same outcome twice?

We do not have DJ Capon’s fact-finding judgment, but we do know from the Court of Appeal’s decision [para 4] that he considered the following allegations, all of which he found proved apart from (5) and (7):

1. Rape during the marriage
2. Verbal abuse and bullying (exemplified by WhatsApp messages in June 2019 – these messages and the way they are treated at different points are important and we will come back to them)
3. Controlling behaviour
4. An incident on 23 January 2018 when the father was said to have upset child A by asking her questions about what the mother had said about the father
5. An allegation of encouraging the children to get into bed with the father whilst he and his partner were naked
6. Physical abuse of the children, exemplified by flicking child B’s ear
7. Financial control.

By the time the matter came before HHJ Gordon-Saker for the second fact-finding, she recorded the issues as follows [para 14]:

1. Whether the father inappropriately chastised the children
2. Whether he exercised coercive and controlling behaviour to the mother in and surrounding contact
3. Whether he displayed emotionally dysregulated behaviour in the presence of or towards the children
4. Whether he abused or intimidated the children

HHJ Gordon-Saker’s findings were as follows (starting at [para 96]):

1. The father frequently inappropriately chastised the children, in particular B. This included flicking his ear, slapping him in the car and manhandling him.
2. He was coercive and controlling in his June 2019 messages. He went on at the mother for three hours. He does not stop until he gets his own way, and he has the same approach to the children, his new partner and her children.  The children suffer emotional harm as a result.
3. The father dictated when he saw the children. He was angry when the mother stopped overnight contact and when A stopped going. He said he would call the police, and did not tell the mother about the blood in child C’s urine. This was deliberate and thoughtless and C was upset.
4. His reaction when people do not do what he wants – including losing his temper such that the mother has to walk on eggshells or lock herself and A in the bathroom – causes harm to the children and they need to be safeguarded from the effects of that.
5. The father has intimidated the children. They have witnessed verbal abuse of the mother at handovers, and have gone to Portsmouth with him to avoid him getting angry. He caused A distress by repeating demands for details, and this was abusive, as was threatening to call the police to force her to go to contact.
6. The father grabbed the children and pushed them into the car when they were upset. B suffered some physical harm and all of the children suffered emotional harm as a result of his treatment of them, and A has also suffered emotional harm from his treatment of the mother when she was younger.

There are at least three notable differences to the way in which the case was considered before DJ Capon versus HHJ Gordon-Saker:

1. HHJ Gordon-Saker did not consider any allegations of rape or sexual abuse in the parents’ relationship, whereas DJ Capon did and found that the father had raped the mother (although that finding was overturned by the Court of Appeal). We know that when HHJ Gordon-Saker case-managed the fact-finding hearing (or “limited the issues for determination” as she describes it), the mother sought permission to appeal her decision which was refused, which may well have been in relation to the rape allegation, but we do not know.
2. Whereas last time the court had only looked at allegations made by the mother, this time HHJ Gordon-Saker considered the father’s allegation of alienation which had featured in his original application to the court, but for reasons we do not know was not considered by DJ Capon at the first fact-finding hearing.
3. Finally, and this is perhaps a bit more subtle – but before DJ Capon, the focus of the fact-finding hearing appeared to be on specific incidents, whereas HHJ Gordon-Saker seems to have looked at everything thematically or in clusters / types of behaviour. This may have been the way the case was put by the mother, which is not unusual – especially pre Re H-N, but it may also have been case-managed that way – I note there is reference to DJ Capon having deleted some of the mother’s allegations at a pre-hearing review.   

We do not know what DJ Capon said of the father and his potential for change during the first fact-finding hearing (if anything), but we do know that HHJ Gordon-Saker did not consider these findings an absolute bar to contact. She said – in her concluding paragraph at 103:

“Contact is in the children’s interests if it can be managed safely. Father has been signposted to courses to help him gain insight and address his behaviour and I would urge him to take them. I know the guardian will consider the children’s wishes and feelings but their emotional needs and their father’s ability to meet them and the risk of harm are also important in this case. I would be grateful for assistance from the counsel on how much time the guardian needs. In the interim, the indirect contact will continue.”

Ultimately, she determined that he lacked insight and did not have the ability to meet the children’s emotional needs, such that they would suffer further harm through direct contact [para 60].

Looking at specific incidents versus considering themes or clusters of behaviour

In my experience, focussing on themes or clusters of behaviour rather than specific incidents is a much better way of standing back and assessing what the dynamic of a relationship is and was, although doing so requires careful case management. It often allows things to bubble to the surface that might otherwise be struck out from a list of allegations, or look a bit unsubstantial when confined to the four corners of a witness statement. I almost always find that there is something that ends up taking on a life of its own once the fact-finding hearing starts, and ends up becoming pivotal to the judge’s analysis of the case. Sometimes it is a point that particularly captures the judge’s attention, other times it is a poignant moment in evidence in chief, or perhaps compelling and / or unattractive series of answers in cross-examination. 

There are lots of examples of this in reported cases post Re H-N, but the original (and perhaps, best) in my view is from F v M [2021] EWFC 4 – a decision widely praised for its understanding of controlling and coercive behaviour and endorsed by the Court of Appeal in Re H-N. In his judgment, Hayden J described an incident whereby the father had forced the mother to call her own mother to tell her she was pregnant as something which “on the face of it, may appear relatively innocuous […] is, in context, a brutal act of mental and emotional cruelty to both the women concerned” [para 49].

You get a real sense of that from the Xbox issue in the K litigation. If you have only read the Court of Appeal’s decision in Re K, you might be feeling a bit bemused,  thinking “what Xbox?” because there is no mention of it there at all. When the case comes before HHJ Gordon-Saker, it becomes a compelling example of the father’s inability to see things from any perspective other than his own.  

So what is the issue? Well, in a few lines – the father bought B an Xbox which he said was B’s, but will only let him use it at his home in Portsmouth. B told the Cafcass officer about this, and it was something all of the witnesses gave evidence on in the fact-finding hearing. After that hearing, when the court is trying to get contact back up and running using an intervention called an ICFA , B asked if he could have some of his devices but the father refused to give them to him.  In the judge’s analysis: “the father sees nothing wrong with his position and is incapable of seeing that if he listens to how his children feel and acts on it, they may have a better view of him”.  

In her welfare judgment, HHJ Gordon-Saker says as follows about the Xbox [para 58]:

“The Xbox has featured hugely in this case. It is such a small thing for an adult to give to a child, their own Xbox that they want, but even now, Mr K seems determined to me not to let B have it.  I am afraid this is still about him being in control of this family. He still wants the children to go  to Portsmouth, and that is all part of the same approach he has. He wants everything on his terms, and A was right about that. He does not see the harm he causes the children. They remember what he was like. Mrs K for her part began to see that the same harm she had been suffering was now being suffered by the children. He still talks about the contact centre being positive, without considering the background and the analysis of that, and that that was a very  small part of it from the children’s point of view. The guardian has tried very hard to help him to  see it. He has been able to read how the children felt, but he just has not taken it on board.”

This  point, pleaded in a Scott Schedule or a list of allegations may well have attracted a judicial red pen and disappeared from the fact-finding hearing, but is actually an important example of one facet of the father’s behaviour and perspective and how it impacts on the children.

The 2019 messages

These messages are a really good example of how evidence should not be examined in separate compartments, but must be looked at in the round.

At the first fact-finding hearing, DJ Capon found that the messages exchanged between the parents in July 2019 constituted verbally abusive behaviour by the father. The Court of Appeal record [para 73] that the mother’s Scott Schedule was limited to that one day, and that “no other evidence of bullying was adduced” and concluded: “we find it surprising that the judge found controlling behaviour after the marriage based mainly on the June 2019 WhatsApp”.

The messages are not set out in full in the Court of Appeal’s judgment, but they are described as follows at different points:

• Paragraph 16: These practical difficulties set the context for the June 2019 WhatsApp, which the father put before the court. Whilst the messages demonstrate increasing frustration by the father exemplified by his threats to issue proceedings if the matter was not resolved, it is of note that the mother clearly said: “I have said I will swap weekends within the next couple of months[;] I  have never denied access to the children”. 

• Paragraph 27: It is clear from the June 2019 WhatsApp that, by then, the father was firmly focussed upon  resolving the apparent stand-off by applying to the court. With hindsight, the issues between the parties at that stage, which were seemingly entirely logistical rather than an objection in  principle to the twins staying overnight, could have been resolved out of court and, probably  most effectively, through mediation.

The way these messages  are described by the Court of Appeal fits very much within its overarching analysis of the case, that it is one crying out for resolution by way of mediation. They are described as demonstrating “increasing frustration” on the father’s part, but the bit that is said to be “of note” is the mother’s response, because she is not saying he cannot see the children. The Court of Appeal appear to rely on the messages to form their view that the problem was one of logistics rather than anything else – hence their strong encouragement towards mediation.

The messages play a different role in HHJ Gordon-Saker’s analysis and overall judgment. She describes them as follows at paragraph 45 (and we can see that by this stage, there are messages from more than one day before the court):

“In addition to their statements, the parents have provided copies of messages between them, mostly on WhatsApp. In June 2019, and this is from the messages father provided to the court to support his case, he was being demanding about the weekends he wanted to have the children and he would not listen to the mother’s reasonable explanations that she already had work and social events planned. Had he been patient, it could have all been sorted out. For more than two years, staying contact had taken place. It was usually on father’s terms. In February 2019, mother had suggested they stay in Cambridge because of the weather. Father refused. The father suggests he could not keep the children entertained for a day in Cambridge, but he sometimes returned them even after just a few hours. Grandfather had offered his flat for father to stay in with the children and he refused. On more than one occasion, father decided to return the children home early and expected mother to leave work and be there. He did that even from Portsmouth; that is evidenced in the messages. It was his choice to cut down the time the children spent with him. Mother is right that the father was controlling and dictated when he would see the children.”

She continues at paragraph 79:

“Asked about the WhatsApp exchange in June 2019, he said that he wanted to swap the alternate weekends. Mother reminded him of the agreement they had made and that she had kept the weekends free. He said, “You are being unnecessarily cruel and inflexible.” He said he would go to court and said:  “I will happily tell the children that I cannot see them as their mother will not let me when I  have access to a car.” 

He wanted to involve the children in his views having criticised her for once having a conversation that A overheard. He tried to bully her into agreeing or he would tell the children and, in the end, she backed down and said she would try to change her work arrangements by the end of the year. It then emerged that grandfather had offered to lend him a car and so there was no need for any of this in any event. She gave in and, even then, he was not happy and he wanted things done his way. That is how mother and the children have experienced his behaviour.  “

HHJ Gordon-Saker, standing back and analysing the messages in the context of everything else in the parents’ relationship, is able to conclude that these messages were part of the father’s controlling and coercive behaviour – see paragraph 98:

“In the WhatsApp exchange of 18 June 2019, the father was coercive and controlling. He went on at her for three hours. He does not stop until he gets his own way. The harm to the children comes from the fact that he has the same approach to them, to his new partner, and to her children. B does not back down and C is compliant so they suffer emotional harm. Their father sees nothing wrong in his behaviour and is unlikely to change. Mother wanting to stop contact now needs to be considered against that.”

You can see that she links them together with other pieces of evidence to reach an overarching conclusion about the father’s behaviour. She also relies on her assessment of the father in his oral evidence, which she summarises at length in her fact-finding judgment. It is clear that she was unimpressed with his perspective and level of insight. She concludes her summary as follows at paragraph 85:

“There are occasional moments where there seemed to be some insight and self-reflection in his evidence but by the time it came to submissions, those had gone. I have set out the parents’ evidence in detail, especially father’s. It shows how wrong he is in his conclusions about how the present situation has come about even on his own recollection. He just cannot see it.”

Why the difference in treatment? Well, to be fair to DJ Capon, he also concluded these messages were abusive – but was criticised by the Court of Appeal [para 73] for relying solely on this exchange as proof of the mother’s allegation of verbal abuse and bullying behaviour.

In any event, it can be easy to dismiss messages that are not obviously outrageous (although there were plenty that fall into that category, too), and even those messages that are obviously outrageous can be explained away as a one-off or out of character. Obviously, the main difference between the Court of Appeal’s ability to analyse these messages versus that of DJ Capon and HHJ Gordon-Saker is that the latter had the distinct advantage of hearing both the parents (and the other witnesses) give live evidence about them, and to evaluate all of the other evidence in that context. 

Before we get that far though, it is ultimately a question of presentation. By that, I do not mean that a snazzy lawyer with a fancy pen can dress something up to be something it is not, and even if attempts are made to do so, in my experience that kind of thing swiftly unravels once the trial gets going. It is a question of proper case preparation and management and making sure that the judge has all of the pieces she / he needs to put the puzzle together, as well as the wider context for the conversations that are taking place.

Proper case preparation and management is not easy. In fact, in cases of this nature it can be like wading through quicksand. It is, at the very least, time consuming and emotionally draining, not least because victims of domestic abuse very rarely present themselves as completely able to articulate and give voice to their experiences, especially in the immediate aftermath of a relationship breaking down, and it is tough asking them to provide a full account of all they have experienced and the impact that has had on them.

That may well have been a feature in this case (and permit me a quick diversion) but one of the things I found particularly interesting when reading all three judgments together is the sense of the “journey” the mother has been on when it comes to her own perception and insight into her experiences with the father. In her fact-finding judgment, HHJ Gordon-Saker describes how the mother says she has attended the Freedom Programme and that the course, together with the passage of time, has made her stronger, more insightful and more aware of the domineering relationship she and the children have existed in as a consequence of the father’s behaviour [para 19]. That might go a little way to explain the differences in the issues the court had to determine at the two different fact-finding hearings. It is also, of course, completely relevant to whether or not a case is suitable for mediation. Although the mother had made a police complaint in 2018, we know from the Court of Appeal’s judgment [paras 20-21] that she did not want to pursue it because of the “stress and fear” of doing so, and that she emailed the detective in charge saying she thought the children’s relationship with their father was important, and would not prevent it unless the children were distressed or refused to see him. That approach is not, in my experience, unusual. Many victims of domestic abuse, especially immediately post-separation, are so used to placating their abusers in an attempt to “manage” their abuse that they will say yes to things that push at the boundaries of what they feel comfortable with, because that is better than risking a blow up. Many – especially at an early stage post-separation – will not yet have put a label on their experiences, still less identify it as abusive, and become a bit immune to what is happening to them and around them.

The dawning realisation that the mother seems to have experienced in this case is often assisted by the passage of time and good therapy. That can be quite tricky to navigate if you find yourself thrust into the Family Court. Often (like in this case) that realisation will come after the victim of abuse has made decisions about unsupervised, overnight contact that they will subsequently come to think were unwise. On more than one occasion, the Court of Appeal refer to the fact that the mother did not oppose unsupervised contact when she filed her Form C1A in February 2020, and there is a general sense from HHJ Gordon-Saker’s judgments that the mother regrets being as amenable as she was.

Could mediation have helped?

I am not a mediator myself, so I spoke to one of my barrister and mediator colleagues in chambers, Rachel Chisholm, who is also a Partner at The Mediation Space. She said as follows:

“Whether a matter is suitable for mediation is a careful and nuanced decision. The Family Mediation Council Standards and Guidance 2022 emphasise the need for the mediator to assess the ‘safety and suitability’ of mediation for the participants. There is no immediate assumption that mediation is the right route for everyone, nor should there be.

Domestic abuse is insidious and may not present itself in a way that is immediately obvious. A very real concern with mediation is that the mediator does not always know what is going on outside  the meetings and what underlying issues are impacting on the decision making of participants. 

The Court of Appeal in Re K highlighted two stages at which mediation could have been attempted in their view: (i) attendance at a MIAM suggesting if they had done so the issue of logistics might have been speedily resolved and (ii) the possibility of exploring at the FHDRA whether ‘the logistics could have been sorted out by agreement.’

The MIAM structure is there to, amongst other things, ‘ensure protection of the public’ (See MIAM standards 2022).’ The mediator needs to be up to date with their understanding of domestic abuse, how perpetrators and victims may cover their behaviours and how it impacts upon the dynamics between the participants. The mediator needs to be alive both to issues of power imbalance between the participants, as well as the potential that the participants themselves lack understanding of the harmful dynamic they may be in.

Looking at the first issue of non-attendance at a MIAM by the father, the Court of Appeal raise concerns about the ease with which parties can bypass the MIAM. I agree that the MIAM has an important function in assisting parties find their way to mediation or other alternate dispute resolution offerings. For some people, they would not have attempted what turns out to be a constructive mediation without first attending at a MIAM and may have found themselves needlessly plunged into litigation. It may have given the parties in Re K the opportunity to consider their options further before issuing proceedings.

Whilst it may be possible for those involved in abusive relationships to mediate constructively, in my view there would need to have been professional intervention by way of therapy and psychoeducation to ensure the participants were emotionally ready (as expressed in the Standards) to participate effectively. The mediator would also need to be experienced in managing such dynamics. However, looking at the facts of this case as they were before the Court of Appeal, by the time of any MIAM or FHDRA in Re K, the mother was making allegations of rape, controlling behaviour and bullying and physical abuse of the children. The Court of Appeal’s criticism of the mother was that she did not consider these issues as central to resolution of the children’s arrangements and as such mediation could have been attempted.

To focus on the issues in dispute, rather than the underlying relationship dynamic, is to misunderstand the function of mediation as a safe space to explore resolution. It is to minimise the impact of domestic abuse on any meaningful participation in mediation. Mediation is a voluntary exercise that relies on participants feeling safe to raise their points of view, being able to compromise with each other, hear the other’s point of view as well as being able to meaningfully take part in the discussions without fear of reprisals.

Whilst I agree that mediation is a very helpful tool for people resolving their disagreements. It is not appropriate for everyone. It is a difficult exercise for participant and mediator. To get it wrong, can have detrimental consequences to the participants and their families.”

The procedural history

The parents had separated in August 2017 and there had been contact between all three children and their father from then until early 2018, but at that point the eldest daughter – A – who was then aged nine, refused to see her father. Her younger siblings – twins B and C – continued to stay with him overnight.

The father made his application to the Family Court in December 2019. Thereafter, there were the following hearings, all before the same judge (DJ Capon) which is unusual in my experience:

• A first hearing (known as a “FHDRA”) on 20 February 2020. This was the hearing at which directions were given for a fact-finding hearing. The safeguarding letter was made available shortly before that hearing and showed that the mother had made allegations to the police of “rape, financial, physical, mental and controlling behaviours” during the marriage, but did not want to take things further because of the “stress and fear” of doing so. There was also a report that A had observed incidents of domestic abuse, too.

• A pre-hearing review on 6 May 2020. DJ Capon made further directions at this hearing, including deleting some of the allegations the mother wished to rely on, although we do not know which those allegations were.

• A two-day fact-finding hearing on 24 and 25 August 2020 at which DJ Capon made a number of findings against the father, and then directed a report from Cafcass on the children’s welfare.

(A comment from me here: so far all of this litigation has happened before the Court of Appeal’s decision in Re H-N).

• The father appealed the fact-finding decision (we do not know when) and that appeal was dismissed by a Circuit Judge (i.e. a more senior judge) on 21 April 2021. That judgment has not been made public, as far as I can see.

• Shortly after that, the father applied to enforce the order for supervised contact because he said the mother had not made the children available for contact as she was supposed to. That application got absorbed into the ongoing proceedings and was dealt with by DJ Capon at the final hearing.

• We know from HHJ Gordon-Saker’s fact-finding judgment that there were two reports from Hampshire County Council in the period following the father’s first appeal being dismissed. The first was dated 2 June 2021, and the second 8 April 2022 (so they are about a year apart, and the second seems to have been completed on the exact same day the Court of Appeal’s judgment was handed down). These reports concerned the father’s new relationship and that woman’s children. HHJ Gordon-Saker described the children’s comments in that report as having “a very familiar ring to them” as compared to what the subject children in the K proceedings had to say [paras 42-44].

• At some point – we do not know when – the father sought to appeal to the Court of Appeal. His appeal was not heard until 2022 (see below), but in the meantime – the welfare proceedings continued before DJ Capon. There was a final hearing over two days in October and November 2021 and the case concluded with an order that the children should live with their mother and have only indirect, monthly contact with their father. The father’s enforcement application was dismissed.

• Almost six months after DJ Capon had decided that it was in the children’s best interests to have very limited contact with their father, the case came before the Court of Appeal. They heard arguments on 2 March 2022 and their judgment was released fairly quickly thereafter on 8 April 2022.

• On 2 March 2022, the Court of Appeal heard the father’s appeal, with the judgment following fairly quickly after on 8 April 2022. It is important to remember that the decision the father was appealing was the fact-finding hearing that had taken place in August 2020, so almost 2.5 years ago by the time it got to the Court of Appeal. The mother tried to appeal the Court of Appeal’s decision to the Supreme Court, but the Supreme Court refused her application.

• Having allowed the father’s appeal, the Court of Appeal sent the case back to a Circuit Judge at the family’s local court to – effectively – start again, and decide whether a fresh fact-finding hearing was required. We now know that the designated Family Judge for Cambridge decided a guardian was needed to represent the children, and listed the case before HHJ Gordon-Saker who appears to have dealt with it consistently since. It seems:

• In August 2022, she directed a list of allegations be produced and limited which allegations she would determine as part of the fact-finding hearing. The mother tried to appeal HHJ Gordon-Saker’s decision but was refused permission to do so quite quickly. We do not know which allegations were removed from the schedule, but it seems likely it is those to do with rape in the marriage.

• On 2 December 2022, she had another case management hearing and sorted out the ground rules for the fact-finding hearing.

• The second fact-finding hearing took place later that month, and HHJ Gordon-Saker’s judgment was handed down on 16 December 2022. This is now almost exactly three years after the father’s application was first made to the Court.

• We do not know exactly when the final hearing took place, but the judgment is dated 31 October 2023, so the proceedings were swiftly approaching their fourth anniversary. HHJ Gordon-Saker appeared to make the same order as DJ Capon had two years’ earlier in respect of contact, allowing for monthly letters and cards. In addition, she made an order preventing the father from making any further applications for child arrangements orders for three years. That would take the children to 18 and about 14, respectively.

So. Almost four years of litigation, two fact-finding hearings, two final, welfare hearings, two appeals (and two more attempted appeals) and countless case management decisions – the Family Court ultimately decided, as it did in 2021, that it was in the children’s best interests to have their contact with their father limited to cards and letters.