Webinar – Planning Together For Children

Here you will find the video and presentations from the Fenners and LFJB Webinar, ‘Planning Together for Children’.

Thank-you for your attendance, and thanks to our brilliant speakers for their support in this event:

Planning Together for Children, Jude Edwards from CAFCASS

Fact Finding Hearings –Current Guidance, HHJ Gordon-Saker DFJ

Moving Towards Mediation, Jane Bridge from The Family Mediation Trust

Please find the documents below:

Planning Together for Children Presentation

Planning Together for Children Factsheet

Mediation Update

Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders

Following the commitment to review Standard Family Orders (“SFOs”) made in January 2022, Mr Justice Peel announces the results of this review in the below statement, which highlights the changes made to SFOs, along with guidance as to how such orders should be drafted.

“I make this announcement with the authority of the President (of the Family Division).

On 18 January 2022, Mostyn J, the judge then in charge of Standard Family Orders (“SFOs”), announced a wide ranging review of the SFOs. I continued the review after succeeding him on 26 April 2022. HHJ Hess was appointed to lead the review of the financial remedy SFOs, with the assistance of Amy Kisser and Nicholas Allen KC. HHJ Moradifar was appointed to lead the review of the children SFOs, with the assistance of Steven Howard, Nastassia Hylton, Edward Bennett and Alexander Laing. I am enormously grateful to them all for their immense work in undertaking this exercise.

I am also grateful to Melissa Chapman of Class Legal who carried out a complete overview of formatting and layout. Class Legal produce an online package of the SFOs, which is free to access for any member of the judiciary (full time or part time) with an ejudiciary account; they can be contacted on info@classlegal.com

As part of the review process, Mostyn J announced a consultation period. A full list of those who responded is attached at Appendix A. It includes judges, barristers, solicitors and various organisations.

The significant volume of responses, combined with the detailed consideration given to the SFOs by the Standard Orders Group, has led to a number of revisions. In part, they reflect changes in law, practice and procedure. In part, they have been amended to achieve internal consistency and clarity of phraseology. Formatting and stylistic improvements have also been made.

As before, the SFOs do not have the status of “forms” under FPR Part 5. The default position is that they should be used, but parties and the court are permitted to adapt them to such extent as may be appropriate.

Among the main changes to the SFOs are:

  • The orders contain directions supporting the Statement on the Efficient Conduct of Financial Remedy proceedings in the Financial Remedies Court Below High Court Judge level.
  • The orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing.
  • The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles.
  • The financial orders include additional undertakings such as (i) not applying for decree absolute/final decree until 28 days after the making of a financial order (relevant for the making of a pension sharing order); (ii) removal of Land Registry notices; and (iii) obtaining a Get.
  • The orders incorporate the provisions of the Divorce and Dissolution Act 2020, incorporating the new terminology for divorces – conditional order and final order in place of decree nisi and decree absolute – although retaining both options for the time being while this change takes effect.
  • The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a Qualified Legal Representative.
  • The financial orders include draft costs orders updated to reflect changes in practice and guidance on costs.
  • The financial orders include draft directions and substantive orders on pensions updated to reflect changes in practice and guidance in this area.
  • The financial orders include a free-standing draft order to accommodate the Accelerated First Appointment procedure.
  • The orders include a Permission to Appeal directions order.
  • The orders incorporate the changes to law and practice brought by the withdrawal of the United Kingdom from the European Union.
  • The orders incorporate the new required forms for cases involving committal applications.
  • The orders incorporate, among other updates, an updated Deprivation of Liberty order, an updated standalone Port Alert order, reference to the “Planning Together for Children Course” instead of the “Separated Parents Information Programme”, and the correct contact details for any disclosure request to NHS England.
  • The orders incorporate bespoke headings for the Family Court and the Family Division.
  • The children orders reduce significantly the use of recitals. In general, recitals now appear at the end of children orders, giving greater prominence to the body and substance of the orders.
  • Warning notices have been updated and made consistent.
  • In the children orders, there are separate orders for different stages of public law and private law proceedings, all of which have been made more streamlined.

I attach the updated House Rules which reflect the changes made.

I anticipate that a further, albeit much more limited, review of the SFOs will be undertaken during 2024 once the orders are bedded in and users have experience of them in practice. The Standard Orders group is conscious that, although the intention has always been to provide a comprehensive set of orders to which any user can reach, some of the orders are lengthy and can be time consuming for a judge to draft in a case where both parties are unrepresented. This particularly applies to private law children cases and Family Law Act injunctions. A judge with a busy list of such hearings may be required to draft several orders during the court day. The Standard Orders Group is investigating ways in which this task can be made more streamlined and quicker for judges.


Respondents to consultation:


Our Family Wizard
Divorce Lifeline
News Media Association
Media Lawyers Association
The Official Solicitor
Association of District Judges
Peterborough City Council
High Court Cafcass
Office of the President of the Family Division
HM Tipstaff Office
Family Justice Council Experts Group
Judicial Office


Chris Wells
Jonathan Briant
Michael Allin
Mark Cooper
Ben Wooldridge
Janine McGuigan
Claire Athis Schofield
Segolene Lapeyre
Matthew Maynard
Catherine Gee
Rebecca Harrington
Gavin Smith
Rhys Taylor
Jane Bacon
Sharin Diegan
Andrew Leong
Emily Driver


Tracy Lambert
Kirstie Gibson
Kadie Bennett
Teena Dhanota-Jones
Carla Ditz
Anna Dunne
Anna Nice
Claire Williams
International Family Law Group
Nadia Tymkiw
Maurice Guyer


DJ Parker
DJ Peter Hatvany
DDJ Tim Melville-Walker
HHJ Eleanor Owens
DDJ Graham Campbell
HHJ Richard Robinson
DDJ Rachael Oakes
DJ (now CJ) Beth Japheth
HHJ Gordon-Saker
HHJ Richard Clarke
DJ Joanna Geddes
DJ Kevin Harper


Carole Gavin ”



HouseRules (May2023)

SFO Volume 1 (Zip)

SFO Volume 2 (Zip)

Webinar – Instructing Experts in Family Cases

Webinar – Instructing Experts in Family Cases

On the 19th of January, we will be hosting a webinar that will take a close look at the best practices when instructing Experts in Family Cases.  

The webinar will be led by our panellists;

Fenners Chambers’ Melanie Benn will cover Part 25 Applications and guidance on the need for experts.  Followed by a discussion on the Instruction of Psychologists in Parental Alienation cases from Gareth Frow of Regency Chambers.  Consultant Paediatrician Dr Susan Zeitlin will discuss the use of Experts in Unexplained Injury cases. Finally, HHJ Liza Gordon-Saker will cover the Approach of the Courts.   

We hope you will join us for this invaluable webinar. 

The webinar will start at 4:30 pm for 90 minutes, equating to 1.5 CPD points.   

To register for your place, please use the following link: https://us06web.zoom.us/webinar/register/5816673252167/WN_Iuh2wynKRneR1vCtJJziPg

Efficient Conduct Statement for all Financial Remedy Court cases is released

Efficient Conduct Statement for all Financial Remedy Court cases is released

The first full week back to work in January saw the release of the Efficient Conduct Statement for all Financial Remedy Court cases.

It makes significant changes in the way we prepare cases for Court and it is to be followed with immediate effect.

Our Family Law Barristers have created a quick reference crib sheet of the statement. We’ve also linked to the statement itself below, and the 2 documents which have to be filed jointly for every hearing: the composite case summary and schedule of assets are attached to the main document and the updated schedule of assets is attached separately in excel.

Efficient conduct statement crib sheet

Efficient Conduct Statement

Schedule of Assets template

Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: Re H-N and Others

The purpose of this article is to distil the recent decisions in F v M [2021] EWFC 4 (Fam) and Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, both of which relate to the Family Court’s handling of cases involving domestic abuse.

Re H-N and Others

The background

Re H-N (McFarlane P, King LJ and Holroyde LJ) concerned the conjoined appeal of four cases involving fact-finding hearings. I do not intend to go into the facts of each appeal, but for completeness I shall state that three of the appeals were allowed (one in part) and one (Re H) dismissed (on the grounds that the appeal was purely academic in that the Appellant had no desire to stop or curtail the unsupervised contact between the child and the Respondent which was currently taking place).

The Court of Appeal did however seek to give some ‘general guidance’ in relation to how the court approaches cases of domestic violence, most notably on the following issues/questions:

  1. Is Practice Direction 12J fit for purpose?
  2. What is coercive and controlling behaviour
  3. Whether there should be a fact-finding hearing?
  4. Scott-Schedules
  5. How should allegations of coercive and controlling behaviour be approached in a finding of fact hearing
  6. The relevance of criminal law concepts.

Is PD12J fit for purpose?

It should firstly be noted that the Court endorsed PD12J as currently drafted stating (at para 28) ‘We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings.’

What is coercive and controlling behaviour?

The Court recognised that a central concept of the modern definition of domestic abuse was that of coercive and controlling behaviour and further recognised the difficulties and issues of the application of PD12J. In doing so it commended and endorsed the judgment of Hayden J in F v M calling it ‘essential reading for the Family judiciary’ (para 30).

The Court went on to recognise that harm to a child is not limited to actual violence to the child or parent and stated that ‘a pattern of abusive behaviour is as relevant to the child as the adult victim’ and gave examples of how a child can be harmed at para 31:

‘[…] The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
i) Is directed against, or witnessed by, the child;
ii) Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;
iii) Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
iv) Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.’

In relation to coercive and controlling behaviour (and all other forms of domestic abuse) the Court also endorsed the approach set out by Hayden J of recognising a ‘pattern’ of behaviour as defined in PD12J.

The Court were also clear to recognise that not all behaviour will be classed as abuse and stated at para 32:

‘It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour.’

Should there be a fact-finding hearing?

The Court was clear to endorse the approach set out in PD12J particularly paras 5,16 and 17 (para 35).

It confirmed, having analysed the contents of PD12J, the President’s Guidance ‘The Road Ahead’ and the Overriding Object, that whether a fact-finding hearing should take place will be a question of ‘necessity’ (para 36) and provided the following guidance at para 37:

‘37.The court will carefully consider the totality of PD12J, but to summarise, the proper approach to deciding if a fact-finding hearing is necessary is, we suggest, as follows:
i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).
ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.
iii) Careful consideration must be given to PD12J.17 as to whether it is ‘necessary’ to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.
iv) Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance as set out in ‘The Road Ahead’.’

Scott Schedules

In the course of submissions there was ‘effective unanimity that the value of Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid’ (para 43). There was concern on two fronts, one of principle, in that Scott-Schedules made it difficult for a court to look at a pattern of behaviour when focusing on timed and dated incidents, and one more pragmatic, in that courts were asking that allegations be limited or reduced which could cause a false portrayal of a relationship between two individuals (paras 44 and 45).

The Court accepted the criticism of Scott-Schedules at para 46:

‘46. For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be. This is an important point. Everyone agrees.’

However, at para 49, stated that it could not determine how the information should be presented:

‘49.The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties in their submissions during the course of the hearing. It will be for others, outside the crucible of an individual case or appeal, to develop these suggestions into new guidance or rule changes.[…]’

How should allegations of coercive and controlling behaviour be approached in a finding of
fact hearing?

The Court set out a detailed discussion at paras 50-59 of the judgement. Ultimately the Court left the detail to the trial judge but stated at para 56 and para 59 that where one party made allegations of coercive and controlling behaviour then these would be the courts primary focus above individual dated allegations and they should only be determined ‘because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).’ (para 59)

The Court recognised that dealing with allegations of coercive and controlling behaviour without significantly increasing the timescale of private law proceedings was not an easy balance, but gave four ‘pointers’ at para 58 in relation to this:

a) PD12J (as its title demonstrates) is focussed upon ‘domestic violence and harm’ in the context of ‘child arrangements and contact orders’; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;

b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is ‘necessary’ in order to:
i) Provide a factual basis for any welfare report or other assessment;
ii) Provide a basis for an accurate assessment of risk;
iii) Consider any final welfare-based order(s) in relation to child arrangements; or
iv) Consider the need for a domestic abuse-related activity.

c) Where a fact-finding hearing is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be listed for determination;

d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.’

The relevance of criminal law concepts

In short the Court endorsed the approach in Re R (Children)(Care Proceedings: Fact-finding Hearing) [2018] 1 WLR 1821 that ‘it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.’ (para 62). They further confirmed that the judgment in Re R prevailed over anything contrary in the judgment of Russell J in JH v MF [2020] EWHC 86 (Fam).

The Court did however clarify that Judges in the Family Court should not shy away from using criminal terms (i.e. rape) in the way that it would be used in ordinary speech, but that they are not required to find that the elements of a criminal offence have been made out, in order to make a finding. (paras 60-74).


For me, the five key points to take away from the recent decisions are:

  1. Courts should always be on the lookout for coercive and controlling behaviour in cases where domestic abuse is raised. When is it raised, a pattern of behaviour should be looked at rather than individual (possibly innocuous) incidents.
  2. Fact-finding hearings should only be held when necessary and not all negative behaviour in a relationship will be domestic abuse or require a fact-finding.
  3. If the court’s focus is coercive and controlling behaviour then this will take precedence over individual incidents unless they are so serious on their own (i.e. rape) or are part of a pattern of behaviour.
  4. Scott-Schedules may not always be appropriate, especially for allegations of coercive and controlling behaviour.
  5. Criminal definitions should not be used in the family court, but nor should Judges shy away from using or making findings of behaviour described by criminal terms (i.e. rape) when they are words in ordinary everyday use.
Joshua Walters
Fenners Family Group
Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: F v M

Domestic abuse in the Family Court: F v M

The purpose of this article is to distil the recent decisions in F v M [2021] EWFC 4 (Fam) and Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, both of which relate to the Family Court’s handling of cases involving domestic abuse.

F v M

The background

The judgment of Hayden J followed a 10 day fact-finding hearing in the High Court in November 2020. During the course of the hearing the Judge heard evidence from the parents F and M together with M’s parents; evidence from F’s current partner (Ms J), Ms J’s Mother, Ms J’s ex-husband (and Father of her children) and from professionals.

The evidence focused on F’s relationship with his ex-wife (M) and his current partner (Ms J- whose children had been ordered to live with their Father in separate proceedings in Cardiff, after her relationship with F commenced). The evidence demonstrated that principally F’s behaviour resulted in the isolation of M and Ms J. The control of them emotionally, psychologically and financially and that this could be properly categorised as coercive and controlling behaviour.

After setting out in some detail the evidence he had heard, at para 101 of his judgment, Hayden J concluded:

101. I consider F to be a profoundly dangerous young man, dangerous to women who he identifies as vulnerable and dangerous to children. The risks he presents to women are not only to their emotional and physical well-being but also, in the light of my findings, to their sexual safety. It is clear that he has the capacity to cause much harm and distress to those who cross him more generally, particularly those within the sphere of the women he controls. It has been a disturbing case to hear.

The two most crucial aspect of the judgment are a) the analysis of what coercive and controlling behaviour is and how it should be approached by the Court and b) the post script discussion regarding Scott-Schedules.

Coercive and controlling behaviour

At para 102 of his judgment, Hayden J set out the lack of authority in relation to coercive and controlling behaviour:

102. This may be the first time the Family Court, at High Court level, has been called upon to analyse allegations of controlling and coercive behaviour with the kind of detail that this case has required. Certainly, neither Counsel nor I have been able to find any other reported case in our respective researches.

Hayden J sought to pull together the various sources available by analysing the definitions of coercive and controlling behaviour and domestic abuse in PD12J (para 103 and 104) and also the criminal offence of coercive and controlling behaviour in an intimate family relationship as per section 76 Serious Crime Act 2015 (para 105). He concluded that the court when faced with a case of coercive and controlling behaviour should approach it in the following way (para 108-109):

108. I do consider that a tight, overly formulaic analysis may ultimately obfuscate rather than illuminate the behaviour. I respectfully agree with the general approach taken to evaluating evidence expressed by Peter Jackson J (as he then was) in Re BR (Proof of Facts) [2015] EWFC 41 and Baker J (as he then was) in Devon County Council v EB and Others [2013] EWHC 968. Whenever Judges are called upon to resolve issues of fact, we do so by evaluating separate strands of evidence and then considering them in the context of the whole. Some features of the evidence will weigh more heavily than others and evidence which may not be significant, in isolation, may gain greater relevance when placed in the context of the wider evidential canvas. It seems to me that the definition in the FPR (see para 101 above) provides some useful guidance, when it is broken down:

Coercive Behaviour:

  1. a pattern of acts;
  2. such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
  3. the objective of these acts is to harm, punish or frighten the victim.

Controlling Behaviour:

  1. a pattern of acts;
  2. designed to make a person subordinate and/or dependent;
  3. achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.

109. The overall approach to the assessment of evidence here is the same as in any other case. What requires to be factored into the process is the recognition of the insidious scope and manner of this particular type of domestic abuse. The emphasis in Section 76 of the Serious Crime Act 2015, is on “repetition” and “continuous engagement” in patterns of behaviour which are controlling and coercive. Behaviour, it seems to me, requires, logically and by definition, more than a single act. The wording of FPD 2010 12J is therefore potentially misleading in so far as it appears to contemplate establishing behaviour by reference to “an act or a pattern of acts”. Key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the context of wider behaviour. I emphasise it is the behaviour and not simply the repetition of individual acts which reveals the real objectives of the perpetrator and thus the true nature of the abuse. (my emphasis)

A repeated message throughout the judgement (paras 4, 60, 100, 109-113) is that those dealing with allegations of coercive and controlling behaviour must be cautious before viewing allegations in isolation, particularly where a single act may appear innocuous on its own (as per para 49). As Hayden J puts it at para 4:

4. Key to both behaviours (coercive and controlling behaviour) is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.

Scott Schedules

At the conclusion of the judgment, Counsel for M invited the Judge to comment of the appropriateness of Scott-Schedules in cases involving allegations of coercive and controlling behaviour.

Although he found it inappropriate to give ‘prescriptive guidance’ and said that there were clear advantages to ‘carefully marshalling and honing down the evidence’, he did recognise that in some cases the formulaic nature of Scott Schedules may not easily capture the behaviour complained about and in some cases, such as M v F a Scott-Schedule may be ‘counterproductive’ as they carry ‘the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour’.

Hayden J concludes his judgment with what could be considered an attack on the Scott- Schedule, but ultimately leaves it to the trial judge or ultimately, The Court of Appeal, to determine on another day:

It is, I hope, clear from my analysis of the evidence in this case, that I consider Scott Schedules to have such severe limitations in this particular sphere as to render them both ineffective and frequently unsuitable. I would go further, and question whether they are a useful tool more generally in factual disputes in Family Law cases. The subtleties of human behaviour are not easily receptive to the confinement and constraint of a Schedule. I draw back from going further because Scott Schedules are commonly utilised and have been given much judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. Whether a Scott Schedule is appropriate will be a matter for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach.

Joshua Walters
Fenners Family Group