Tag Archive for: FHDRA

This is an area where litigants in person can easily end up arguing the wrong question.

One parent may insist that every allegation must be tried.

The other may argue that because there was no prosecution, no conviction or no further action by social services, there is nothing for the Family Court to consider.

Neither proposition is necessarily correct.

The court’s task is more focused: what facts actually need to be established before it can assess risk and make decisions about this child?

What is a fact-finding hearing?

A fact-finding hearing is a hearing at which the Family Court determines disputed factual allegations that are relevant to decisions it later needs to make.

In private children proceedings this often arises where one parent alleges domestic abuse, coercive or controlling behaviour, sexual abuse, physical harm or another safeguarding concern and the other parent disputes what happened.

The purpose is not to conduct a general investigation into everything that went wrong during the relationship.

The purpose is to establish the factual foundation the court genuinely needs in order to:

• assess risk accurately;
• understand any harm already suffered;
• commission or use a meaningful welfare assessment;
• decide whether contact can take place safely;
• determine the terms of any child arrangements order; and
• consider whether other safeguarding measures or interventions are required.

That distinction is essential.

A Family Court case can contain dozens of disputed events. The fact that something is disputed does not mean the court needs to adjudicate it.

The disputed fact must matter to the welfare decision.

Cafcass has updated its fact-finding practice aid — but it is not new law

Cafcass currently publishes a document called Fact-finding recommendations: practice aid.

The present document is version 1.2. Its underlying guidance was approved and implemented in March 2025, while links were updated and the full practice-guidance annex was added in August 2026.

That distinction matters because the practice aid is Cafcass guidance.

It is not a new Act of Parliament.

It is not a new Family Procedure Rule.

And it does not replace Practice Direction 12J.

Its purpose is to help Family Court Advisers decide what recommendation to make to the court when disputed allegations of domestic abuse or other harm are raised.

The central Cafcass question: will findings actually change the welfare assessment?

The practice aid says that fact-finding hearings should only be recommended where they are relevant, necessary, proportionate and serve a clear purpose.

That reflects PD12J.

Cafcass is directed to ask whether the reported concerns are likely to affect:

• whether a child arrangements order should be made;
• what terms that order should contain;
• the factual basis for a Section 7 or other welfare assessment;
• the assessment of risk to the individual child;
• the way the child’s experiences are understood; and
• the final welfare decision.

This gives litigants in person a useful way of testing their own allegations.

For each disputed allegation, ask:

If the judge finds this allegation proved, what difference could it make to the court’s assessment of risk, parenting or the child’s arrangements?

If the answer is “none”, the allegation may not justify spending court time determining it.

If the answer is “it fundamentally changes the safety analysis”, the position is very different.

PD12J sets the legal test

Practice Direction 12J governs the Family Court’s approach where domestic abuse is alleged, admitted or otherwise appears relevant in child arrangements proceedings.

Paragraph 16 says that the court should decide as soon as possible whether a fact-finding hearing is necessary:

• to provide a factual basis for a welfare report;
• to enable an accurate assessment of risk;
• before the court can make a final welfare decision; or
• before considering a domestic-abuse intervention.

Paragraph 17 then requires the court to consider matters including:

• the views of the parties;
• the views of Cafcass or CAFCASS Cymru;
• whether admissions already provide a sufficient factual basis;
• whether other evidence already provides that factual basis;
• what evidence would actually be required to resolve the disputed allegations;
• whether the allegations, if proved, would be relevant to the issue the court must determine; and
• whether a separate hearing is necessary and proportionate.

There is another important protection which is sometimes overlooked:

If your order simply says “no fact-finding hearing” and you cannot understand the basis of the decision, read the order carefully and check whether the reasons are recorded elsewhere in it.

A fact-finding hearing may not be needed if the factual foundation already exists

One of the most useful parts of the Cafcass practice aid is its emphasis on evidence that already exists.

Examples can include:

• relevant convictions;
• clear admissions;
• previous judicial findings;
• local-authority material;
• professional or documentary evidence; and
• other reliable information capable of providing a sufficient factual basis.

If the material already before the court provides a sufficient foundation for the necessary risk and welfare assessment, conducting a separate hearing simply to prove facts already established may add delay, expense and stress without improving the eventual decision.

The important word is sufficient.

The question is not simply whether documents exist. It is whether those documents actually resolve the facts that matter.

“The police took no further action” does not necessarily answer the Family Court question

This is one of the most common mistakes in domestic-abuse litigation.

A party may say:

“The police did not charge me, so the allegation is finished.”

Or:

“Social services took no further action, therefore it never happened.”

Neither conclusion necessarily follows.

Police, local authorities and the Family Court perform different functions, apply different statutory frameworks and may be answering different questions.

Equally, an allegation does not become true merely because there was no criminal prosecution capable of disproving it.

The Cafcass practice aid takes a more careful position: where independent or corroborative evidence is absent, the answer is still case-specific. The consequences of leaving significant allegations unresolved have to be weighed against the potential consequences of holding a fact-finding hearing.

That is the balancing exercise.

Fact-finding hearings themselves can cause harm and delay

Fact-finding is not procedurally neutral.

It can involve:

• additional statements and schedules;
• police, medical or local-authority disclosure;
• oral evidence;
• cross-examination;
• participation directions and special measures;
• additional hearings;
• significant delay before a final welfare decision; and
• stress or trauma for children and adults.

Cafcass therefore expressly tells practitioners to consider delay, cost, stress and trauma while remaining focused on safeguarding.

That does not mean difficult allegations should be avoided because determining them is uncomfortable.

It means the hearing needs a clear welfare purpose.

Do not wait until the Section 7 report is finished to ask whether findings are needed

This is a particularly important practical point.

Cafcass says the need for fact-finding should be considered early — potentially in the safeguarding letter or at the first hearing.

The guidance specifically says it is not necessary to wait until a Section 7 report has been completed before identifying that findings may be required.

That makes sense.

If a Family Court Adviser cannot reliably assess risk without knowing whether serious disputed conduct occurred, spending months preparing a welfare report on an unresolved factual foundation can create exactly the problem a fact-finding hearing is supposed to prevent.

PD12J reflects this in another way: where the court directs a fact-finding hearing about domestic abuse, a Section 7 report will not usually be requested until after that hearing.

The findings can then provide the factual framework for the welfare assessment.

If you already have a Section 7 report, JSH Law’s Cafcass & Section 7 Report Help explains how to analyse the factual basis, welfare reasoning and recommendations.

What if the court already decided that no fact-finding hearing was necessary?

That decision is important.

But it does not mean the issue can never be revisited.

The 2026 Court of Appeal decision in D (Change of Circumstances: Domestic Abuse Allegations) [2026] EWCA Civ 969 is now essential reading in this area.

In that case, Cafcass initially recommended fact-finding. The court decided it was unnecessary and instead directed a Section 7 assessment.

The later Cafcass report then materially relied upon disputed domestic-abuse allegations when making significant recommendations about the child’s future.

The Court of Appeal held that this should have triggered reconsideration of whether a fact-finding hearing was necessary.

Lord Justice Baker made the practical point particularly clear: where the court has previously decided not to hold a fact-finding hearing but a later Cafcass report concludes that disputed abuse is materially relevant to the child’s future, Cafcass and the parties should expressly draw that to the court’s attention and the question of fact-finding should be reviewed.

Allegation, evidence, professional opinion and finding are different things

This distinction becomes critical in fact-finding cases.

Keeping those categories separate makes a case much easier to analyse.

It also helps avoid one of the most dangerous procedural errors: treating a professional’s acceptance of one party’s account as though the court has already determined the disputed facts.

What the court will actually need if fact-finding is required

If the court decides findings are needed, PD12J requires the issues to be managed fairly and proportionately.

The court may need to identify:

• the key factual disputes;
• the allegations that actually need determination;
• the other party’s response to each allegation;
• whether an alleged pattern of coercive or controlling behaviour needs to be considered holistically;
• what witness statements are required;
• what third-party records are genuinely necessary;
• whether oral evidence from professionals or other witnesses is required;
• what participation directions or special measures are necessary; and
• how the hearing can be conducted fairly without unnecessary evidence or delay.

PD12J expressly allows schedules or tables to identify examples of an alleged pattern of coercive and controlling behaviour so that the judge can consider the alleged abuse holistically rather than simply viewing incidents in isolation.

The Cafcass guidance adds another practical warning: any Scott Schedule should be succinct, relevant and focused.

A schedule containing thirty weak allegations is not automatically stronger than one containing six properly evidenced allegations that are directly relevant to risk and welfare.

Current safety cannot wait for the fact-finding hearing

A fact-finding hearing may take time to arrange.

That does not mean safeguarding is suspended while everyone waits.

Cafcass’s practice aid tells Family Court Advisers to keep interim arrangements and current risk under review.

Where appropriate, Cafcass may need to consider:

• whether current child arrangements are safe and beneficial;
• a section 16A risk assessment;
• whether a local-authority referral is needed; and
• what should happen while the factual dispute remains unresolved.

PD12J likewise contains specific safeguards governing interim arrangements where domestic-abuse allegations have not yet been determined.

Common mistakes litigants in person make

1. Asking for fact-finding simply because allegations exist

Explain why resolving the disputed facts is necessary for the welfare or risk decision.

2. Putting every relationship dispute into the allegations schedule

Focus on the facts that could materially affect the outcome. A court does not need to adjudicate every unpleasant argument in a relationship.

3. Treating “no further action” as proof that an allegation is false

Explain what the external agency actually decided and what it did not decide.

4. Treating a Cafcass concern as a judicial finding

A safeguarding concern or professional assessment is important, but it is not automatically a finding of fact.

5. Waiting for the Section 7 report before raising the problem

If the welfare assessment cannot safely proceed without findings, that issue should be identified early.

6. Asking for huge amounts of disclosure without explaining why

Identify the factual issue the records are capable of resolving. Disclosure should be proportionate to the issues actually being tried.

7. Confusing a chronology with an allegations schedule

A chronology explains sequence. A schedule identifies disputed allegations and responses. They can work together, but they perform different jobs.

8. Ignoring the latest court order

Your generic understanding of fact-finding does not override a case-specific direction. Start with the latest order and work out exactly what has already been decided and what must be filed next.

A note for cases in Wales

The Cafcass practice aid discussed in this article is guidance issued by Cafcass in England.

Family proceedings in Wales are supported by CAFCASS Cymru, which is a separate organisation.

PD12J itself expressly refers to both Cafcass and CAFCASS Cymru, but practitioners and litigants should not assume that every internal Cafcass England practice document is automatically a CAFCASS Cymru policy.

The latest case-specific directions and applicable local or Welsh guidance should therefore always be checked.

How JSH Law can help with fact-finding preparation

Fact-finding cases are often evidence-heavy.

The difficulty may not be remembering what happened. It is working out which incidents actually matter, what evidence supports them, how they fit into an alleged pattern, what remains disputed and how to present the case proportionately.

JSH Law provides privately funded, non-reserved litigation support to litigants in person in family proceedings.

Depending upon the case, support may include:

• reviewing the latest order and procedural position;
• analysing a Cafcass safeguarding letter;
• reviewing a Section 7 report;
• identifying which allegations appear materially relevant to welfare and risk;
• building an allegation-and-response schedule;
• preparing a master chronology;
• creating an issue-to-evidence matrix;
• identifying evidential gaps;
• organising police, medical, school or local-authority material;
• assisting with witness-statement preparation;
• assisting with position statements;
• preparing for an FHDRA, directions hearing or fact-finding hearing; and
• McKenzie Friend or hearing support where appropriate and agreed.

Defined pieces of preparation work can often be scoped in advance.

You do not necessarily need somebody to review your entire case history before useful work can begin.

Usually, the best starting point is the latest order, the Cafcass safeguarding material, the allegations currently in issue and the date of the next hearing.

Current fee information is available on the JSH Law Pricing page .

The question is necessity, not volume

Fact-finding hearings play an essential role where disputed facts have to be determined before the court can safely assess risk and welfare.

But more findings are not automatically better.

The best fact-finding case is not the one containing the greatest number of allegations.

It is the one which allows the judge to understand:

• what factual disputes genuinely matter;
• why they matter to this child;
• what evidence exists;
• what remains uncertain;
• whether a finding is actually required; and
• what welfare decision will follow from the factual foundation the court establishes.

That is ultimately the logic running through both PD12J and Cafcass’s practice guidance.

The question is not:

“How many allegations can I put before the court?”

It is:

“What does the court actually need to decide before it can make a safe and properly informed welfare decision for this child?”

Official sources and further reading

• Cafcass — Fact-finding recommendations: practice aid, version 1.2.
• Family Procedure Rules — Practice Direction 12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm.
• Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448.
• D (Change of Circumstances: Domestic Abuse Allegations) [2026] EWCA Civ 969.
• Domestic Abuse Act 2021.

Legal and procedural information checked: 27 September 2026.