When Is A Fact-Finding Hearing Necessary In Child Arrangements Cases?

A recent judgment from the High Court addresses when a fact-finding hearing is necessary in child arrangements proceedings involving allegations of domestic abuse. The case provides important guidance for practitioners on applying Practice Direction 12J (PD12J) and assessing proportionality.

What is a fact-finding hearing?

A fact-finding hearing is a Court process designed to determine whether disputed allegations are true, usually in cases where those facts will significantly influence the outcome of proceedings.

In family law, these hearings often arise in private law children cases under the Children Act 1989, particularly when there are allegations of domestic abuse or other serious concerns. The purpose is not to decide the final arrangements for children but to establish a clear factual basis before moving forward. Judges consider evidence, hear testimony, and apply relevant guidance such as PD12J, which sets out when such hearings are necessary to ensure safety and fairness. Once the facts are established, the Court can make informed decisions about welfare and contact arrangements.

Case background

The Mother (“M”) appealed a case management decision refusing a fact-finding hearing in proceedings concerning the Father’s (“F”) application for a child arrangements order for their daughter, CT (born 2023). M alleged a long history of abuse, while F made limited admissions. The first-instance judge concluded a fact-finding hearing was unnecessary, citing delay and F’s engagement with an anger management course.

M alleged a pattern of abusive behaviour spanning nearly two decades, including:

F admitted to:

Initial decision

The Judge declined to order a fact-finding hearing, reasoning that F had made some admissions, that M’s vulnerability would be considered in welfare analysis, and that most serious allegations predated CT’s birth. The Judge also relied on F’s completion of an anger management course and expressed concern about the delay.

M appealed on several grounds, including inadequate reasoning, failure to address PD12J, undue reliance on F’s course completion, and lack of proper analysis of the evidence.

Court of Appeal’s analysis

Macdonald J allowed the appeal on grounds 1, 3, and 4. The judgment emphasised that Courts must consider three key questions when deciding whether a fact-finding hearing is necessary:

The Court found that the original judgment failed to analyse the allegations of coercive and controlling behaviour or their longitudinal nature. It also criticised reliance on the anger management course, noting Cafcass guidance that such courses are not appropriate interventions for domestic abuse perpetrators. Leaving disputed facts to Cafcass without judicial determination was deemed problematic.

The appeal was allowed, and a fact-finding hearing was ordered. The Court stressed that establishing a clear factual foundation is essential for assessing risk under Section 1 of the Children Act 1989.

Key takeaways for practitioners

This case reinforces that PD12J compliance is critical and that admissions alone do not negate the need for fact-finding where allegations suggest a pattern of coercive control. Interventions such as anger management courses should not replace judicial scrutiny, and Section 7 reports, prepared by Cafcass or local authorities under the Children Act 1989, provide the Court with an independent assessment of a child’s welfare and recommendations for arrangements, which must be based on verified facts rather than assumptions.