In private children proceedings, parties often arrive at court believing that if allegations are disputed, a fact-finding hearing must follow as a matter of course. That is not how these cases are managed. The court is concerned with what is necessary, what is proportionate and, above all, what will best equip it to make safe welfare decisions for the children.
A case one of our barristers worked on provides a good example. The dispute concerned children living with one parent, serious allegations of domestic abuse, concerns about cocaine and alcohol misuse, and a live issue as to whether any direct contact should take place before further evidence was obtained. At the hearing, the court was invited to decide whether the proceedings should now move into a separate fact-finding exercise or whether the case should instead be progressed by welfare investigation and testing.
The court chose the second course. It decided that a fact-finding hearing was not necessary or proportionate at that stage and that such a hearing would cause disproportionate delay. That point matters. Delay is not an abstract procedural problem in children work. Delay can itself be harmful. Where the court can gather the evidence it actually needs by a more focused route, it will often do so.
Allegations, even serious allegations, do not answer the case management question by themselves. The issue is whether findings are required now to resolve the welfare dispute. Sometimes the answer is yes. Sometimes it is plainly no. In many cases, the court will ask a more important question: what evidence is needed next so that the children’s position can be assessed properly and safely?
In this case, the court directed a section 7 report. A well-framed section 7 report allows Cafcass to address the matters which actually drive the outcome in a private law children case: with whom the children should live, whether they should spend time with the other parent, the children’s wishes and feelings, each parent’s ability to meet their needs, the nature of any risk of harm and whether a stepped or supported arrangement can sensibly be recommended.
That is often more valuable than parties suppose. A fact-finding hearing may determine whether certain allegations are proved, but it does not automatically tell the court what arrangements are workable, what the children are saying now, whether they feel safe, or how contact could be reintroduced without destabilising them. A section 7 report can do that. It gives the court an evidence-based welfare assessment rather than a narrow contest over past events.
The court also refused interim contact. That was unsurprising. Interim contact is not granted because a parent asks for it or because the court hopes matters might settle. It must be safe. If there are unresolved concerns about substance misuse, emotional harm, domestic abuse or poor supervision, the court is entitled to hold the line until better evidence is available.
That is particularly so where the children’s account, the safeguarding material or the history of the case suggests that contact has broken down for reasons which require proper scrutiny. In those circumstances, an order for interim contact can do more harm than good. It can place the children back into uncertainty before the court has worked out whether the risk is real, exaggerated, historical, current or capable of management.
A further feature of the case was the order for drug and alcohol testing. The court directed hair strand testing in respect of cocaine and alcohol markers, together with alcohol monitoring. Allegations of substance misuse often generate a lot of heat and very little light. Testing cuts through assertion. It provides an objective evidential base from which the court, the parties and Cafcass can work.
Where a parent’s use of alcohol or drugs is said to affect parenting, judgment, supervision, emotional regulation or reliability, testing may be central. It can either expose a real problem or narrow the dispute. In either event, it assists the court. It also allows the case to move on from general accusation to a measured assessment of present risk.
For practitioners there is an obvious lesson. The hearing at which case management is determined matters a great deal. A muddled presentation of issues can send a case into unnecessary satellite arguments. Clear advocacy can do the opposite. It can identify what findings are truly material, what evidence is capable of being obtained quickly, whether testing is justified, and whether Cafcass should now be asked to report.
In cases of this kind, the argument is rarely improved by taking absolutist positions. Saying that all allegations must be tried immediately is often wrong. Saying that allegations do not matter is equally wrong. The proper approach is more disciplined. Which allegations, if proved, would materially affect the welfare outcome? Which concerns can be investigated by other means? What does the court need now, rather than later, to make safe interim and final decisions?
That analysis is also important for parents. Many litigants come to court wanting vindication. The court is not conducting an abstract inquiry into who behaved badly in the relationship. It is deciding what arrangements are safe and in the children’s interests. Where a section 7 report and objective testing are more likely to answer that question than immediate oral evidence, the court may well prefer that route.
There is also a wider point about domestic abuse allegations in private children proceedings. They must be treated seriously, but seriousness does not dictate only one procedural answer. Practice Direction 12J requires the court to confront those issues properly. Sometimes that will mean findings of fact are unavoidable. Sometimes welfare investigation, special measures, carefully framed directions and interim safeguards will come first. Good case management depends on knowing the difference.
Private law children cases are won or lost in large part by the quality of the directions obtained early on. A coherent plan, rooted in welfare and evidence rather than emotion and noise, usually gives the court a route forward. A poor plan usually creates delay, expense and a harder road to a safe outcome.
For assistance in this area of law, contact clerks@anvilchambers.co.uk