Family Court rules on treatment of allegations against intervenors that are not litigated or determined

The judge, Her Honour Judge Emma Nott, had ruled that determination of those allegations was neither necessary nor proportionate to the welfare issues in the care proceedings.

In Oxfordshire County Council v KM & Ors [2026] EWFC 309 (B), HHJ Emma Nott concluded: “The application for a recital or declaration to the effect that the allegations against IKM and JM did not occur is refused.

“The order shall record only that the allegations concerning IKM and JM were removed from the ambit of the fact-finding hearing pursuant to my ruling of 6 August 2026. Any future welfare assessment will proceed on the basis of findings made by the court and not upon allegations that have not been determined.”

In an ex tempore ruling delivered on 6 August 2026, HHJ Nott determined, applying the principles derived from A County Council v DP, RS and BS [2005] EWHC 1593 (Fam) ("Oxfordshire"), that it was neither necessary nor proportionate for allegations against the Second and Third Intervenors, IKM and JM, to form part of a forthcoming fact-finding hearing.

The judge therefore removed the allegations from the ambit of the hearing, and directed that neither young man should remain an intervenor or be called as a witness.

HHJ Nott further made clear that this was “not a finding that the allegations were false, nor a finding adverse to the credibility or reliability of [3rd and 4th Respondents]”.

It was the latter aspect of the ruling that gave rise to argument at the conclusion of the hearing.

On behalf of IKM, Tina Cook KC submitted orally that whilst she understood the reasoning underlying that part of the judge’s decision, it appeared to sit uneasily with the binary nature of fact-finding in family proceedings.

HHJ Nott said: “If allegations were not to be litigated, and if no findings were to be made against IKM or JM, she questioned how it could simultaneously be said that the allegations were not to be treated as false or as anything other than not having occurred.

“Put shortly, the concern articulated on behalf of IKM was that absent further clarification, IKM and JM would be left in an uncertain position, with serious allegations continuing to cast a shadow over them notwithstanding the court's decision that those allegations should not be determined.”

Counsel on behalf of IKM therefore sought a preamble to the order to the effect that neither IKM nor JM had acted in the way alleged by V2 and V1 (the 3rd and 4th Respondents).

Considering the case, HHJ Nott accepted that family proceedings operated a binary system of proof.

Where a disputed fact fell to be determined, the court had to decide whether it happened or did not happen. “There is no room for findings that events ‘might’ have occurred.”

She continued: “The present case, however, concerns neither allegations that have been determined nor allegations requiring determination to inform welfare decisions. It concerns allegations which the court has decided do not require adjudication at all.

“The authorities relied upon by IKM and the Father do not address that situation; they concern allegations which fall to be adjudicated and are either proved or not proved. They do not establish that an allegation which the court has decided need not be adjudicated must nevertheless be treated as disproved.”

Outlining the “central difficulty” with IKM’s argument, HHJ Nott said: “On the one hand, he correctly accepts that my decision of 6 August 2026 was not a finding that the allegations were false. On the other hand, he contends that the only lawful consequence of that decision is that the alleged events 'simply did not happen'. In my judgment, those propositions cannot readily be reconciled. The recital he contends for cannot properly be characterised as merely recording the consequence of the Oxfordshire decision; it would amount to a substantive determination of the very allegations which I have decided do not require adjudication.

“In my judgment, this would invert rather than apply the binary principle. […] The binary principle explains how a court must resolve factual issues requiring decision, and the effects of that resolution. It does not extend to the resolution of issues that the court has expressly decided need not be determined because determination of them would be unnecessary and disproportionate to the welfare issues in the case. Those issues are expressly outside the ambit of the court’s consideration.”

A further submission advanced on IKM's behalf concerned the judge’s reliance upon R v T; R v H and R v Al-Hilly.

It was said that those authorities import “criminal law concepts” into family proceedings in a manner prohibited by Re R and that the consequence of doing so, namely precluding reliance upon the unpursued allegations to undermine the sisters' credibility, may be inconsistent with the binary nature of family fact-finding.

Considering this, HHJ Nott said: “In my judgment, this criticism stems from a misapprehension of the reach of the binary principle. Criminal proceedings are themselves paradigmatically binary; yet Al-Hilly operates within them. The binary principle requires a court – family court or criminal court – to determine the issues before it as proved or not proved; but it applies to issues which fall for determination.

“The Al-Hilly line of authority addresses a different question altogether, namely the treatment of an allegation that is not pursued and does not fall for determination within the proceedings. The proposition that such an allegation cannot, without more, be deployed to impugn the credibility of its maker is consistent with binary fact-finding, because the court is not required to decide whether that allegation is true or false at all.”

Refusing the application for a recital or declaration to the effect that the allegations against IKM and JM did not occur, HHJ Nott concluded: “The allegations against IKM and JM were not litigated and were not determined. They may not be relied upon as proved facts in any welfare assessment arising from these proceedings, but neither can their non-determination be treated as establishing that the alleged events did not occur. Contrary to the Father's submission, that does not create a third category of factual finding between proof and disproof. It reflects the distinction between allegations that have been determined and allegations that the court has concluded do not require determination at all.

“In my judgment, that conclusion is consistent with the binary principle, with the authorities relied upon by all parties, and with the purpose underlying the Oxfordshire jurisdiction.

“[…] The order shall record only that the allegations concerning IKM and JM were removed from the ambit of the fact-finding hearing pursuant to my ruling of 6 August 2026. Any future welfare assessment will proceed on the basis of findings made by the court and not upon allegations that have not been determined.”

Lottie Winson