In the recent case of M v F [2025] EWFC 442 (B), the court balanced findings of coercive and controlling behaviour, conflicting expert evidence, professional recommendations and the children’s wishes. The court ordered that the children live with their mother and spend time with their father. Partner Carly Kinch and paralegal Ellen Watson examine the Family Court decision, which was made against a backdrop of long-running proceedings.

Background

The parties separated in 2022, having been in a relationship for around 12 years. They had two sons, aged 12 and 14. A fact-finding hearing in February 2024 established that the father had engaged in a pattern of coercive and controlling behaviour both during and after the relationship, including attempts to undermine the mother’s economic position after separation.

The case then moved to welfare decisions for the parties’ children under the Children Act 1989.

Under section 1(3) of the Children Act 1989, the court must consider the statutory welfare checklist, which requires it to weigh factors including the children’s wishes and feelings, their physical, emotional and educational needs, any harm they have suffered or are at risk of suffering, and the capability of each parent to meet those needs. The court ordered:

1. A Children and Family Court Advisory and Support Service (Cafcass) report to be prepared under section 7 of the Children Act 1989 by an independent family court adviser to assess the children’s circumstances and make recommendations to the court on their best interests
2. That the children be joined to the proceedings with a guardian appointed by the National Youth Advocacy Service (NYAS), an independent charity that provides children with their own legal representation and ensures their wishes and feelings are placed before the court
3. The instruction of a single joint expert psychologist for the parents.

The judgment considers how the court should approach welfare decisions when determining child arrangements where findings of coercive and controlling behaviour have been made. It balances the significance of those findings with the children’s wishes. It also considers when and why the court may decide to depart from expert recommendations in that context.

Issues: expert evidence, guardian recommendations and children’s wishes

The single joint expert, a chartered psychologist, produced a report that the court criticised as “unconventional”. The judge said it was tangential, poorly signposted and notably did not mention the earlier findings of fact despite directions to assess the father’s insight into those findings. In oral evidence, the single joint expert was “unnecessarily rude”, strayed into welfare recommendations outside his remit and aligned himself with the father’s narrative without having a legitimate basis for doing so. The court found the single joint expert’s evidence was unhelpful in determining welfare issues and gave it little to no weight.

The NYAS guardian made recommendations in a series of reports. These evolved from an initial recommendation of a six-week transition plan from limited supervised contact to the parents sharing the children’s care equally, to a 4:3 arrangement in the mother’s favour (ie, the children would spend four days a week with the mother and three days with the father), on the basis that this aligned with the boys’ wishes. While the court acknowledged the guardian’s efforts, it noted gaps in the Practice Direction 12J (PD12J) risk analysis. This analysis is a formal assessment of the nature, pattern and impact of alleged domestic abuse and the risk it poses to the children and the non-abusive parent, to assist the court in determining what arrangements are safe and in the children’s best interests. The court also noted that there was undue reliance on the boys’ stated wishes without sufficient consideration of the wishes’ origins and the operational unsustainability of a proposed 4:3 split that left the children without full weekends with either parent. The court therefore departed from these recommendations.

While the court acknowledged that it must have regard to the children’s wishes and feelings (which should be considered in light of their age and understanding), these should not be determinative and must be evaluated. The court found the boys’ wishes, though genuine, were not independently formed and were significantly influenced by the father’s messaging and discussions about decision‑making and “50:50” ie his desire that the children’s time be split equally between their parents. The children’s views were not irrelevant, but they were not determinative of the outcome, and the court reduced their weight accordingly.

Risk analysis

The court was required to conduct a welfare analysis under section 1(3) of the Children Act, with reference to the court’s earlier findings of fact and any expert risk assessment obtained.

Having found that neither the single joint expert nor the guardian had produced a meaningful risk analysis in line with PD12J, the court conducted its own analysis, taking a holistic view of the evidence to ensure any order would manage risk and promote welfare. The court assessed both past and future risk of harm. It concluded that the father’s ongoing behaviour created a continuing risk of emotional harm to both the children and their mother.

Outcome

The court ordered that the children should live with their mother, spending each Thursday after school and alternate weekends with their father, with handovers through their school or grandparents, to manage risk. The holidays were to be structured in the same way to maintain stability, rather than on an equal basis as tends to be customary.

The court also made an order under section 91(14) of the Children Act 1989 prohibiting the parents from making a further application to the court without the court’s prior permission, to reduce the strain of repeated litigation. The court stressed that its function was not to act as a “rubber stamp” on arrangements agreed between parents: the welfare analysis must lead, and equal shared care would neither reduce conflict nor serve the children’s welfare in this case.

Key takeaways

Key takeaways from the case are as follows:

• Coercive and controlling behaviour: The court will consider the perpetrator’s insight and post-separation behaviour when conducting the welfare analysis
• Experts: Reports must engage with earlier findings and should include a PD12J compliant risk analysis. They should not stray into welfare recommendations
• Guardian/Cafcass reports: Recommendations are not binding, and the court will depart where the risk analysis is incomplete, or logistics are unworkable
• Children’s wishes: Children’s wishes must be assessed in their context, including whether they were independently formed, and they are not determinative of outcome.

Partner Carly Kinch comments:

“This decision is a timely reminder that findings of coercive and controlling behaviour will be central to the court’s welfare analysis even in the face of opposing professional recommendations and clearly expressed wishes of children. 

“The judgment underlines the court’s willingness to depart from expert and guardian recommendations where the risk analysis is either incomplete, or the proposed arrangements will in practice increase the risk of potential harm and/or further conflict. It also reaffirms that while children’s wishes must be given proper weight, they alone are not determinative and must be carefully evaluated in the full context of the case.

“In short, the court’s role is not just to rubber‑stamp agreements or recommendations but rather to reach an outcome that genuinely promotes the children’s welfare.”