Child Focused Courts Change Procedure, Not Domestic-Abuse Safeguards: Fact-Finding Must Be Driven by Welfare Necessity

1. Introduction

This was the first appeal concerning a private-law children decision made under the new Child Focused Court (“CFC”) model. The Court of Appeal used the case to clarify the relationship between that investigative, less adversarial procedure and the established law governing domestic abuse, fact-finding and child welfare.

The proceedings concerned four siblings, aged between six and fourteen. Following earlier litigation in which the father admitted controlling, physically abusive and otherwise harmful conduct, the children lived with the mother and had supervised contact with him. Later concerns included breaches of supervisory boundaries, unsafe activities, the secret purchase of a telephone for the eldest child and the father’s undermining of the mother during telephone contact.

The Family Court nevertheless ordered limited, supervised face-to-face contact, while ending telephone contact and imposing safety conditions. It refused applications substantially restricting the father’s parental responsibility, for a prohibited steps order and for a non-molestation order. It also imposed a one-year restriction under section 91(14) of the Children Act 1989 on applications by both parents.

The mother appealed, principally arguing that domestic abuse had been minimised, that further fact-finding was required, that the CFC procedure had been applied too summarily and that direct contact was unsafe.

2. Summary of the Judgment

The Court of Appeal held that:

• The CFC model changes procedure and culture, but not the substantive law governing children, domestic abuse or procedural fairness.
• Practice Direction 12J remains fully applicable and must be applied with the same care and rigour as in conventional private-law proceedings.
• A fact-finding hearing is required only where findings are necessary to assess future risk or determine the child’s welfare.
• Where relevant conduct is admitted or sufficiently understood, and identified risks can be addressed through proportionate safeguards, further fact-finding may add nothing of value.
• The investigative character of the CFC model permits robust control of oral evidence, provided each party has a fair opportunity to participate.
• The Family Court was entitled to reject the Family Court Adviser’s recommendation that direct contact should end, because that recommendation inadequately assessed the children’s wishes and the harm likely to result from losing an established parental relationship.
• The order for limited supervised contact was within the judge’s welfare discretion.
• The section 91(14) restriction against the mother was unsupported by an individual analysis of her conduct and had wrongly equated her position with that of the father.

The appeal was therefore allowed only in relation to the section 91(14) order against the mother. All other grounds were dismissed.

3. The Governing Legal Framework

3.1 The Child Focused Court model

The CFC model, formerly known as “Pathfinder”, is intended to replace unnecessarily adversarial litigation with an investigative and problem-solving process. Its central features include early information gathering, a Child Impact Report (“CIR”), direct judicial engagement and greater attention to the child’s lived experience.

The model also responds to concerns identified in the Harm Panel Report that domestic abuse had been minimised, children’s voices insufficiently heard and a “pro-contact culture” allowed to influence outcomes.

3.2 Paramountcy and domestic abuse

Section 1(1) of the Children Act 1989 remains controlling: the child’s welfare is the court’s paramount consideration. The Domestic Abuse Act 2021 recognises children who see, hear or experience the effects of domestic abuse as victims in their own right.

Under PD12J, where domestic abuse is admitted or proved, any contact order must protect the physical and emotional safety of both the child and the parent with whom the child lives. The court must explain why contact will not expose them to an unmanageable risk of harm and why the arrangement is beneficial for the child.

3.3 The necessity test for fact-finding

The critical question is not whether alleged abuse is serious in the abstract. It is whether resolving the disputed allegation is necessary to assess future risk and make the welfare decision. A fact-finding hearing is not a separate forum for determining every grievance arising from the parental relationship.

4. Analysis of the Court’s Reasoning

4.1 The CFC model does not dilute PD12J

The principal precedential statement is that procedural reform does not alter the substantive safeguards applicable to domestic abuse. The CFC model is less adversarial, but it is not less protective. Judges must still:

• identify domestic abuse at the earliest opportunity;
• understand patterns of coercive or controlling conduct;
• assess the impact on the child and victim parent;
• determine whether disputed facts require adjudication; and
• explain how abuse findings affected the final welfare decision.

The court also accepted that any agreement reached under the CFC model must be genuine and informed. A problem-solving approach cannot be used to pressure a victim-survivor into an unsafe arrangement.

4.2 Why no further fact-finding was necessary

The mother’s post-2024 complaints were largely admitted. The father accepted that he had purchased a secret telephone, pushed supervisory boundaries and exposed the children to unsafe situations. The Family Court therefore had a sufficient factual platform from which to assess risk.

Further adjudication would not have changed the practical issue before the court: whether the identified risks could be managed through supervision and restrictions. The judge responded by reducing contact, continuing supervision, prohibiting unsafe water activities and terminating telephone contact.

The Court of Appeal did, however, treat the father’s conduct during telephone calls as capable of forming part of the previously established pattern of coercive and controlling behaviour. Because the harmful conduct was sufficiently established, no additional fact-finding was needed. Ending telephone contact directly addressed both the harm and the risk of recurrence.

4.3 Procedural fairness and control of evidence

The court rejected the argument that limiting oral evidence made the hearing unfair. Rules 1 and 22 of the Family Procedure Rules 2010 require active and proportionate case management. Parties are entitled to a proper opportunity to present their case, not unlimited hearing time.

The judge had not restricted the subjects on which counsel could cross-examine. Nor had counsel identified specific disputed allegations requiring formal determination. The early indication of provisional views was also consistent with the problem-solving nature of the CFC process and did not establish prejudgment.

4.4 Contact and the welfare balance

The existence of serious domestic abuse did not automatically determine the contact outcome. The court had to compare:

• the risk of emotional and physical harm arising from continued contact; and
• the emotional, psychological and developmental harm likely to result from ending the children’s established relationship with their father.

All four children had expressed a wish to see their father. Those wishes could not be considered in isolation from the abusive family history, which may have shaped their understanding and responses. Nevertheless, contextualising children’s wishes does not deprive them of weight.

The judge was entitled to conclude that the greater risk lay in removing the father entirely from the children’s lives. The resulting order was carefully limited: short, supervised face-to-face contact, no telephone contact and restrictions on activities.

4.5 Departure from the Family Court Adviser’s recommendation

A court is not bound by a Family Court Adviser’s recommendation, but must give adequate reasons for departing from it. Here, the adviser’s analysis was materially deficient because it:

• gave insufficient weight to the children’s stated wishes;
• did not adequately assess the harm caused by the abrupt cessation of contact;
• did not visibly apply the statutory welfare checklist;
• failed to address the consequences of losing an established parental relationship;
• did not fully disclose the extent of communications with the mother; and
• omitted from the written report the adviser’s view that professionally supervised contact could be recommended in defined circumstances.

The decision underlines that a formulaic assertion that the welfare checklist has been applied is insufficient. The report should demonstrate how the relevant statutory factors produced the recommendation.

4.6 Supervision by a family friend

The judge was entitled to prefer continued supervision by a trusted family friend rather than professional supervision. He had heard that witness give evidence and was therefore better placed than an appellate court to assess her reliability, insight and ability to follow risk-management guidance.

4.7 Parental responsibility and protective orders

The Court of Appeal upheld the refusal substantially to remove or restrict the father’s exercise of parental responsibility. Despite his poor decisions and abusive history, excluding him from all decision-making was neither necessary nor proportionate on the evidence and could undermine the children’s welfare.

The refusals of a prohibited steps order and a non-molestation order were also upheld. Detailed undertakings had been offered, and the judge had adequately explained why additional judicial controls were not required.

4.8 The section 91(14) error

A section 91(14) order requires a person to obtain the court’s permission before making a further application concerning a child. It may be justified by repeated unreasonable applications, harassment, oppressive conduct, domestic abuse or a demonstrated need for respite from damaging litigation.

The Family Court had imposed the restriction on both parents merely because a period of respite was considered desirable. It did not examine whether the mother’s individual conduct came within the statutory and practice-direction criteria.

The Court of Appeal held that it was wrong to create false equivalence between the victim parent and the parent responsible for domestic abuse. A section 91(14) order requires a person-specific analysis; it cannot be imposed symmetrically simply because litigation has become difficult or unpleasant.

5. Precedents Cited

Re H-N & Others [2022] 1 WLR 2681 and Re K [2022] 1 WLR 3713

These authorities supplied the central “necessity” test. Fact-finding is required only where disputed facts are likely to affect the child arrangements order, the terms of contact or the assessment of future risk. They also establish that PD12J and proportionate case management operate together, not in opposition.

F v M [2021] EWFC 4

This decision explained the cumulative and patterned nature of coercive and controlling behaviour. The Court of Appeal relied on it to emphasise that incidents should not automatically be viewed in isolation.

Re A [2025] EWHC 1279 (Fam)

The authority supports the proposition that even a serious allegation need not be tried if its resolution will not affect the welfare outcome. Litigation detached from the child’s welfare may itself be harmful.

A v K (Appeal: Fact-Finding) [2024] EWHC 1981 (Fam)

This case connected the necessity test with the overriding objective and the obligation to decide promptly which issues genuinely require investigation.

Re H-D-H [2021] EWCA Civ 1192, Re B-B [2022] 2 FLR 725 and Re R [2018] EWCA Civ 198

These decisions reinforce that fact-finding must produce something material for the welfare decision, that evidence should be confined to necessary issues and that family fact-finding serves a different function from a criminal trial.

Mother v Father [2022] EWHC 3107 (Fam)

This authority supported firm judicial control of hearing time and oral evidence, consistently with fairness and proportionality.

ER v NT [2025] EWHC 2146 (Fam)

The interveners relied on this decision concerning the factual foundation required for welfare assessments and the limited value of anger-management or emotional-regulation courses as evidence that coercive domestic abuse has been addressed.

Re D (Change of Circumstances: Domestic Abuse) [2026] EWCA Civ 969

This contemporary Court of Appeal authority established that a court acts unfairly if it determines welfare on the basis of a section 7 report whose recommendations materially assume unproven domestic-abuse allegations to be true. If the allegations are material to the recommendation, the court must reconsider whether fact-finding is necessary.

W v W (A Minor: Custody Appeal) [1988] 2 FLR 505

The case supports the requirement that a judge departing from a welfare professional’s recommendation must explain the reasons for doing so.

Re A (Parental Responsibility) [2023] EWCA Civ 689

This authority informed the proportionality analysis concerning whether the father should be excluded from exercising parental responsibility.

Re B [2013] UKSC 33, McGraddie v McGraddie & another [2013] UKSC 58 and Re S [2007] 1 FLR 819

These authorities explain appellate restraint. A trial judge who has seen and heard the witnesses and conscientiously applied the welfare checklist is afforded substantial latitude, particularly in a finely balanced case.

Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 and Re A (Supervised Contact) (s 91(14)) [2021] EWCA Civ 1749

These cases supplied important safeguards governing section 91(14) orders. Such an order requires a properly reasoned, individual assessment and cannot be imposed simply as a general response to difficult litigation.

6. Complex Concepts Simplified

Child Impact Report

An early report bringing together safeguarding information, the child’s experiences and views, parental accounts and professional risk information.

Fact-finding hearing

A hearing at which the court decides disputed factual allegations. It is ordered only when resolving those allegations is necessary for the welfare or risk decision.

Coercive and controlling behaviour

A pattern of conduct designed to dominate, isolate, intimidate or undermine another person’s autonomy. Its significance usually lies in its cumulative effect.

Welfare checklist

The statutory factors in section 1(3) of the Children Act 1989, including the child’s wishes, needs, age, circumstances, risk of harm and each parent’s capabilities.

Parental responsibility

The legal rights, duties and authority associated with parenting, including involvement in major decisions about health, education and upbringing.

Section 91(14) order

A protective order requiring a person to obtain permission before making another application concerning a child. It regulates access to the court rather than permanently barring an application.

7. Impact of the Decision

The judgment is likely to affect future CFC proceedings in five principal ways:

1. Continuity of domestic-abuse safeguards: courts cannot treat the CFC model as relaxing PD12J or the requirement for a safe welfare analysis.
2. Focused fact-finding: judges should identify precisely which disputed facts would alter the assessment of future risk or the proposed arrangements.
3. Transparent professional analysis: CIR and section 7 recommendations should reveal the welfare-checklist reasoning, material communications and any alternative recommendation considered.
4. Contextual treatment of children’s wishes: children’s expressed views remain important but must be assessed in light of the abusive dynamics that may have shaped them.
5. Individualised section 91(14) decisions: restrictions must be justified separately for each person and must not create false equivalence between perpetrator and victim-survivor.

The court deliberately declined to issue broader guidance on all questions raised by Cafcass and Cafcass Cymru, including the treatment of perpetrator-programme reports. Those matters were not sufficiently central to the appeal and had not been fully argued.

8. Conclusion

Re C establishes that the Child Focused Court is a procedural and cultural reform, not a modification of the substantive law protecting children and victim-survivors of domestic abuse. PD12J, welfare paramountcy and procedural fairness retain their full force.

The controlling principle is necessity: fact-finding should occur where it is required to provide a reliable foundation for assessing future risk and welfare, but not where relevant conduct is already admitted or understood and the risks can be safely managed.

The decision also provides an important warning against indiscriminate section 91(14) orders. Judicial concern about prolonged litigation cannot justify treating an abused parent’s conduct as equivalent to that of the abusive parent without a specific evidential and statutory analysis.