Legal Update
Three main take aways from F v M [2023] EWFC 5
8 February 2023

Three main take aways from F v M [2023] EWFC 5

Author: Chloe Branton

In F v M [2023] EWFC 5 Mr Justice Hayden gave judgment in what is hopefully the final part of the protracted litigation between a father (F) and a mother (M) of 2 young children. This particular judgment followed the decision by Hayden J in F v M [2021] EWFC 4 back on 5 January 2021 regarding very serious allegations of coercive and controlling behaviour by F. As Hayden J notes in this most recent judgment, his approach in determining such allegations within finding of fact hearings was endorsed by the Court of Appeal in H-N and other (Children) (Domestic Abuse: Finding of Fact Hearings) (Rev 2) [2021] EWCA Civ 448. This particular judgment, however, focuses on the aftermath of findings.

Hayden J sets out some of the ways these proceedings have been delayed, usually by the actions of F. This judgment however, was mainly focused in regards to whether and what orders should be made for contact between F and the 2 children. Given the focus more recently on the finding of fact hearings themselves, this judgment assists with the inevitable question that results once findings are or are not made: what happens next?

Hayden J’s judgment is useful for practitioners in covering 3 main areas of interest which can often arise when advising clients of the ‘welfare stage’ post finding of fact hearing:

  1. No Contact Orders- and how even annual indirect contact can be inappropriate
  2. Parental Responsibility- and the disparity between married and unmarried fathers when it comes to removal of PR.
  3. ‘Lawfare’ and Section 91(14) Children Act 1989- how section 91(14) can be an appropriate protective filter for children and parents in the face of continued controlling and coercive behaviour.

This case law update will briefly discuss each of these three highlighted issues that arise within Hayden J’s judgment.

No Contact Orders- and how even annual indirect contact can be inappropriate

The Cafcass officer had filed a report recommending indirect contact by way of a letter from F once per year to the children. M was to store the letters in a safe place ‘until such a time that they are able to read his letters’ [14]. She had concluded it would not be possible to safeguard the children from F’s emotionally and psychologically abusive behaviours until he had undertaken behaviour change work. The advocates contacted the judge to inform him they were preparing a consent order to adjourn the hearing, with the Cafcass officers’ recommended contact to form part of the order. The judge refused the application, stating he thought it was “at very best, misconceived.” [15]. He also noted the lack of application for an order pursuant to section 91(14) Children Act 1989, which will be considered later, along with how F used the court process to continue to control and abuse.

The court considered a statement from the maternal grandmother (‘MGM’) about the indirect contact that had taken place between the children and F. Her account was deemed insightful and powerful, and recorded in the judgment as a result at paragraphs 25 and 26. The judge considered that MGM had “rightly identified that F was projecting an image to his children that cast him in a glamorous way” [28]. The judge had no confidence that F can use indirect contact as a way for the children to know something of their cultural origins, as the Cafcass officer had hoped. Instead, the court considered him to be a ‘fantasist’. The judge examined some of the indirect contact he had sent, both in terms of contents and the type of cards themselves, and was concerned that they were unsettling and confusing for the children. F had not ever seen the youngest child, yet he was writing that he loved and missed them. The judge was clear F had not shown insight into his behaviours throughout the proceedings, nor “exhibit even a scintilla of empathy” and was instead arrogant [29].

Evidence was heard from the Cafcass officer. She was clear that if the parents had not been married, she would have recommended the revocation of F’s parental responsibility. In the words of Hayden J therefore: “This begs an inevitable question. If that were so, why would she recommend indirect contact. It struck me that the Cafcass officer had reverted to general principles, without weaving them into the particular circumstances of this deeply troubling case.” [27]. He considered that the general principle of leaving open the option for some contact between child and parent, often for some genetic inheritance and cultural understanding, is a sound and important principle. However, this must not be seen as automatic. Instead “The need for it and the potential damage that might be caused by it, need properly to be evaluated” and the reach and importance of indirect contact should not be underestimated [27].

Overall, the judge determined that, when analysed, he could not identify any benefit of indirect contact for the children. Instead, it was easy to see how indirect contact (even annually) could be harmful to them and M. Whilst M had been prepared to agree to this level of contact, she was doing so to try and avoid conflict and was troubled by it. She was also giving deference to the Cafcass officer as a professional who had given a recommendation to the court. This also demonstrated how M had not yet “fully achieved the capacity to assert her own autonomy” given F’s controlling behaviour during and since their relationship [31]. At the conclusion of the hearing F decided not to oppose an order for ‘no indirect contact’ after all. A judgment was still required, however.

Hayden J therefore provided the following view in the final paragraph of his judgment: “… there are occasions where it is necessary to recognise a disagreeable truth. There is, sometimes, though very rarely, a parent who has nothing to offer a child and whom the child is better off without. This is such a case.” The judge considered how, even in adoption cases, limited indirect contact is invariably ordered to highlight how uncommon a true no contact order is. The judge wished to be clear, however, that the family’s negative assessment of F was correct. He stated that his “comments in respect of this father are not ones that any Judge makes lightly. Judges do well to avoid emotive terms, but equally, where a clear finding requires to be made, it cannot be concealed in abstruse or cryptic language…” [32].  

This case serves as a useful reminder that indirect contact can be important and reaching, and thus a useful and powerful connection for the children with a parent in appropriate cases. However, it also reminds advocates that indirect contact should not be seen as an automatic principle. It must be properly analysed in light of the risks and any findings in a case. Parents and advocates should also not be afraid to challenge the assessment of a professional where it seems they may be relying on general principles without proper application to the specifics of the proceedings. Whilst true “no contact” orders are likely to still be rare, the analysis here is useful when considering what advice to provide in response to a contact recommendation.

Parental Responsibility- and the disparity between married and unmarried father’s when it comes to removal of PR.

As previously stated, the parents in this case were married. F was accordingly granted PR automatically for both of his children in accordance with s2(1) Children Act 1989. S4 of the Act deals with the removal of PR. As lawyers in this area well know, s4(1) only applies if the parents were not married at the time of the child’s birth. In this case as F was married to M at the time of the children’s births, s4(2) which provides that a person who has acquired PR under s4(1) ceases to have PR only if the court orders, is not applicable.

Hayden J provides a helpful summary of the key issues around whether it is compatible with the European Convention on Human Rights  (‘ECHR’) to have such a distinction between married and unmarried fathers through reference to both Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) [2016] 2 FLR 977 and MZ v FZ and Others [2022] All ER (D) 130.

Hayden J appears to agree with Russell J in MZ v FZ in recognising the way society and families have changed considerably since the Children Act 1989 was introduced in October 1991, especially in regard to cohabitation. Hayden J here stated that he finds the “anomaly of legal status [between married and unmarried] to be profoundly uncomfortable” but that the “contemplated protection for the applicant parent and children is to be found in the regime of Prohibited Steps Orders and Specific Issue Orders” given there can be no withdrawing of PR. Essentially the “legal status of a married father remains intact [but] it can be stripped of any potency to reach into the lives of the mother and children” thus adversely impacting his ability to affect the welfare of either.” [7].

As the government is urged to consider litigation to better protect the rights of cohabitants in various ways, it may well be that thought is given to this distinction around PR. However, successive governments have continued to allow greater rights and status for those who are married on the basis that marriage has a positive impact on society. Overall, it would seem unlikely for a statutory change to be made any time soon. Advocates should therefore be sure to check the basis upon which a father has PR and be able to advise their client accordingly.

‘Lawfare’ and Section 91(14) Children Act 1989- how Section 91(14) can be an appropriate protective filter for children and parents in the face of continued controlling and coercive behaviour.

Within this helpful judgment, Hayden J references an earlier decision of  Lady Justice King in in Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749 in the identification of ‘lawfare’. This is a concept which Hayden J considers “encapsulates an experience that will be familiar to every family lawyer” [19].

King LJ considered ‘lawfare’ in that case noting: “[41] ….the type of behaviour indulged in by one of the parents amounts to ‘lawfare’, that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for a parent from what is in effect, a form of coercive control on their former partner’s part.”

Hayden J went on to say that, given the enhanced understanding we now have of controlling and coercive behaviour, we can now recognise that “When all other avenues are lost, too often the Court process becomes the only weapon available.” [20].

Advocates will be familiar with their clients expressing frustration at the protracted nature of litigation, with some applications being deemed an insidious way to continue to exercise control and torment their former partner. Hayden J reminds lawyers and judges to be “assiduous to identify” when lawfare occurs, to ensure the court is a “guarantee of protection” rather than “manipulated into becoming a source of harm” [20].

It is these such cases that are likely to be assisted by consideration of an application for an order pursuant to section 91(14). Previously, and still at times, seen as a draconian order, the new Domestic Abuse Act 2021 (‘’DDA 2021’) provides a handy reminder as to their existence and power.

Section 91A was inserted into the Children Act by the DDA 2021, with a “considerably wider scope for the greater use of section 91(14)” in the modern age of wider social media access and presence. Hayden J echoed the view that section 91(14) was always intended to “provide a protective filter from inappropriate applications” to protect children and the live with parent. He also reminded lawyers that it “is not a punitive measure towards a recalcitrant parent. Neither is it a bar on access to justice” given it does not prevent applications entirely. Instead, it is designed to be used in appropriate cases to protect the child and primary carer from “the stress and uncertainty of a misconceived or vexatious application.” [18]. In short, it is these cases of ‘lawfare’ that cry out for a section 91(14) application.

Hayden J considered that the section 91A provisions “are transformative. The section provides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm.” [20]. The provision recognised the toll protracted litigation has, especially on those who are likely already vulnerable.

When hearing this particular matter Hayden J was clear that he found that “F found the opportunity to extend his controlling behaviour into the Court arena.” [17]. The judge also considered that the agreed protective provisions of the parties did not recognise the opportunities litigation had created for F to exert control over the children and M’s lives. [17] Consequently, the judge agreed with the making of a section 91(14) Order, albeit noting F had agreed to one in any event.

Whilst not a case setting precedent, another recent case with a section 91(14) Order made is that of TF v DL v E&P [2022] EWFC 1389. Here DJ Webb granted the Order for 5 years at the recommendation of the Children’s Guardian, against a backdrop of 15 recent applications. As professionals consider the insertion of section 91A further, we are likely to see further cases where section 91(14) Orders are made (or not). These cases should help us see how the DDA 2021 challenges the landscape of children cases.


Overall, it is promising to see a judgment highlighting the significant impact of controlling and coercive behaviour in relationships, and how such behaviour can continue to exist through insidious applications and/or protracted litigation. Professionals, whether that be lawyers, judges or Cafcass officers, must remember to analyse cases individually rather than falling back on general principles without proper application. Section 91(14) orders can be helpful protective tools, and are being recognised as such more often, rather than seen as a draconian and punitive measure. The insertion of section 91A through the DDA 2021 has been a useful reminder of this and we will hopefully see further case law reinforcing this soon. Finally, orders for no indirect contact at all, can and will be appropriate orders in some cases. Thought must be given to the actual impact and purpose of any indirect contact, both positive and negative, without simply concluding that its existence for the ability to meet cultural identity needs outweighs any upset, confusion, or emotional harm.

Further Reading:

To read more about Re H-N and the recent case law around domestic abuse allegations and the Domestic Abuse Act 2021 in general, see Naakesha Michl’s article from 8 February 2022:

See also Chloe Branton’s case law update regarding special measures in fact finding hearings 12 January 2022:

Chloe also published a piece on special measures in the June 2022 edition of the Family Law Journal:

See also Lucy Sowden and Chloe Branton’s webinar on the Domestic Abuse Act 2021 and recent case law surrounding the treatment of domestic abuse within private law proceedings from July 2022: