Tag Archive for: Welfare Checklist

What happened in Re D?

The case concerned a seven-year-old girl, referred to in the judgment as D.

Following her parents’ separation, D remained living with her father in the former family home and continued attending her local school. Her mother moved away and subsequently applied for D to move to live with her and attend a school near her new home.

The mother alleged domestic abuse by the father, including allegations of coercive and controlling behaviour.

Cafcass’s initial safeguarding letter recommended that there should be a fact-finding hearing to establish a factual baseline. At the FHDRA, however, the court decided that a separate fact-finding hearing was not necessary.

Instead, the court directed Cafcass to prepare a section 7 report.

Importantly, the direction required the Cafcass officer to consider a number of matters, including the parents’ concerns about one another, D’s emotional needs, the parenting capacity of both parents having regard to the mother’s domestic abuse allegations, and the effect upon D of the proposed move — including the proposed change in educational provision.

If you are dealing with a section 7 report in your own proceedings, JSH Law has a separate practical guide on Cafcass and Section 7 Report Help, including how to identify factual errors, evidential gaps and unsupported recommendations.

The section 7 report changed the direction of the case

The section 7 report was eventually filed nearly six months later.

It recommended a very significant change.

D should move from her father’s care to her mother’s care, move approximately 50 miles away and change school.

The Cafcass officer’s assessment of the disputed domestic abuse allegations had become central to that recommendation. The officer considered the mother’s account more compelling and ultimately concluded that the only emotionally safe option was for D to live with her mother.

But there was a fundamental procedural problem.

There had been no fact-finding hearing. There were no judicial findings establishing that the disputed allegations had occurred.

The Cafcass assessment had therefore moved beyond identifying and assessing a possible safeguarding risk. The recommendation was substantially dependent upon a conclusion about disputed facts which the court itself had never determined.

The court then adopted the recommendation

At the final hearing, the Deputy District Judge made an order providing that D would live with her mother and move school.

The consequences for D were substantial. She would leave the home in which she had always lived, leave her existing school and local relationships, and move into a different household with her mother, her mother’s partner and his three sons.

The father appealed.

His first appeal did not overturn the decision that D should live with her mother. He therefore pursued a second appeal to the Court of Appeal.

The Court of Appeal allowed that appeal on all five grounds, set aside the child arrangements order and remitted the case for rehearing.

What did the Court of Appeal actually decide?

Lord Justice Baker’s judgment is important because it identifies a procedural problem that can easily become obscured in difficult safeguarding cases.

Cafcass has an important safeguarding role. A Family Court Adviser is not expected to shut their eyes to possible abuse simply because allegations have not yet been determined.

Indeed, the Court of Appeal expressly recognised that information may emerge during a section 7 investigation which indicates that a child may be at risk because of domestic abuse. There may therefore be circumstances in which a Cafcass officer must refer to domestic abuse concerns despite an earlier decision by the court not to conduct a fact-finding hearing.

But that does not give Cafcass the judicial function of deciding disputed facts.

In Re D, once the officer’s recommendation became substantially dependent upon the conclusion that the alleged abuse had occurred, the procedural position had changed.

The question of fact-finding needed to be revisited.

Why wasn’t the original decision not to hold a fact-finding hearing the end of the matter?

This is one of the most useful aspects of the judgment.

Whether a fact-finding hearing is necessary is not necessarily a question that can only be asked once.

Practice Direction 12J requires the court to consider domestic abuse issues throughout proceedings.

A court might reasonably decide at an early hearing that a separate fact-finding exercise is not necessary because the allegations are not sufficiently relevant to the decisions the court expects to make, because the issues can be dealt with another way, or because a separate hearing would not be necessary and proportionate.

But subsequent evidence can change that position.

That is effectively what happened here.

Once the section 7 recommendation depended heavily upon the conclusion that abuse had occurred, those disputed allegations had become directly relevant to the proposed final welfare outcome.

At paragraph 113, the Court of Appeal said that the Cafcass officer, the parties and the court should have recognised that the question of whether a fact-finding hearing was required had to be reviewed.

At paragraph 116, Lord Justice Baker made the wider lesson clear: where a court has previously decided not to conduct a fact-finding hearing but a later section 7 report treats allegations of abuse as material to the decision about the child’s future, the issue should be drawn expressly to the court’s attention and the need for fact-finding reconsidered.

That is a significant procedural safeguard.

For a wider explanation of how domestic abuse allegations should be approached in private children proceedings, see Domestic Abuse Allegations and PD12J: A Guide for Litigants in Person.

Not every allegation requires a fact-finding hearing

There is another equally important point.

Re D does not mean that every disputed allegation of domestic abuse automatically requires a separate fact-finding hearing.

PD12J requires the court to decide whether findings are necessary for the issues it must determine. The court considers matters including the relevance of the allegations, the assessment of risk, the welfare decisions that need to be made and whether a separate fact-finding hearing is necessary and proportionate.

Family proceedings should not become an attempt to determine every allegation ever made between two parents.

But the reverse is equally important.

If the court is being invited to make a life-changing order because disputed abuse is said to have occurred, there must be a proper factual foundation for that decision.

The question is therefore not simply:

“Are domestic abuse allegations being made?”

It is:

“What role are those allegations playing in the welfare decision the court is being asked to make?”

The other major problem: the welfare checklist

The Court of Appeal identified another serious deficiency in the section 7 assessment.

Under rule 16.33 of the Family Procedure Rules 2010, an officer preparing a welfare report in Children Act proceedings must have regard to the relevant matters within the statutory welfare checklist.

One of those factors is the likely effect on the child of any change in their circumstances.

That was hardly a peripheral issue in D’s case.

The proposed order meant that a seven-year-old child would leave the home in which she had always lived, leave the school where she was settled, move approximately 50 miles away and enter a materially different household.

Yet the Court of Appeal found that the report had failed to analyse properly what those changes would mean for D.

The officer had not explored D’s feelings about her school or friendships, had not spoken to her teachers, had not analysed the differences between the schools and had not explored her relationship with the three children in her mother’s new household.

Describing D as resilient did not fill that evidential gap.

Lord Justice Baker described the absence of proper consideration of the effect of the move as the “most striking omission” in the report.

Risk assessment is not a substitute for the welfare checklist

This part of the judgment deserves particular attention.

The Cafcass officer had used the Domestic Abuse Practice Pathway. That was not itself inappropriate.

Cafcass’s own guidance describes its Domestic Abuse Practice Pathway as a framework for evidence-based risk assessment focused on the impact on the child and designed to support professional judgment.

The problem was that the domestic abuse framework became, in Lord Justice Baker’s words, the prism through which the recommendation was reached.

The wider statutory welfare analysis was lost.

Safeguarding is essential. But a safeguarding assessment does not displace the Children Act 1989 welfare framework.

The question is ultimately not simply whether there is a risk factor. The court must evaluate the child’s welfare as a whole.

That includes the child’s wishes and feelings, physical and emotional needs, educational needs, the likely effect of changes in circumstances, harm suffered or risked, and the capability of relevant adults to meet the child’s needs.

Why this case matters for domestic abuse survivors too

It would be a mistake to read Re D as an anti-domestic-abuse judgment or as suggesting that allegations should be treated sceptically unless already proved.

That is not what the Court of Appeal said.

Domestic abuse, including coercive and controlling behaviour, may be profoundly relevant to a child’s welfare. PD12J exists precisely because domestic abuse can harm children directly and indirectly, including through its effect on parenting and family relationships.

Survivors need proper risk assessment.

But they also need a court process capable of making clear findings where disputed abuse is materially relevant.

Leaving serious allegations in a procedural no-man’s-land can serve nobody well.

The alleged victim does not receive the clarity of judicial findings. The person accused may find major decisions being made on the basis that allegations are effectively being treated as proved. And the child’s welfare assessment risks being built on an uncertain factual foundation.

Procedural fairness and safeguarding are not opposing concepts.

Done properly, each supports the other.

If the difficulty is separating allegations from evidence and findings, it can help to build a structured chronology or evidence matrix. JSH Law’s Family Court Evidence & Chronology Help explains how to distinguish what was alleged, what the evidence actually proves and what has already been determined by the court.

A section 7 report is evidence — it is not the judgment

This is something litigants in person can understandably lose sight of.

A Cafcass recommendation can carry considerable weight. Judges quite properly take the professional analysis of Family Court Advisers seriously.

But the court remains the decision-maker.

The judge must evaluate the evidence, apply the welfare checklist, resolve factual matters which require determination and explain why the order made is in the child’s best interests.

The court cannot simply outsource that decision to Cafcass.

Re D also illustrates why the reasoning within a judgment matters. The Court of Appeal criticised the first-instance judgment for failing adequately to identify the background, issues, parties’ cases and evidential evaluation before arriving at the outcome.

A major change in a child’s life demands transparent reasoning.

Judicial continuity mattered too

Lord Justice Baker ended the judgment with a further observation that will be familiar to many families navigating lengthy proceedings: the importance of judicial continuity.

The judge who conducted the final hearing was the third judge involved in the proceedings.

The Court of Appeal observed that, had the judge who originally decided that fact-finding was unnecessary later seen the section 7 report, that judge might have recognised that the situation had changed and that the allegations now required judicial determination.

Continuity is not merely an administrative convenience.

In complex children cases, it can contribute to coherent case management and decision-making.

The wider lesson from Re D

There is a temptation in family proceedings to treat everything as binary.

Either believe the allegation or dismiss it. Either trust Cafcass or attack the report. Either prioritise safeguarding or insist on procedural fairness.

Re D demonstrates why that thinking is too simplistic.

The Family Court has to do several difficult things at once.

It must take domestic abuse seriously. It must identify and manage risk. It must protect children while relevant facts remain unresolved. It must allow each party a fair opportunity to address allegations against them. It must determine disputed facts where those facts are necessary to the welfare decision. And it must then stand back and conduct a proper, child-focused welfare analysis.

None of those stages can safely be replaced by another.

A risk assessment is not a finding of fact.

A finding of fact is not, by itself, a welfare decision.

And a section 7 recommendation — however professionally expressed — is not a substitute for the court’s own evaluation.

What happened to the order?

The Court of Appeal allowed the father’s second appeal on all five grounds.

The child arrangements order was set aside and the case was remitted for rehearing.

Importantly, the Court of Appeal did not determine that the mother’s allegations were false.

Nor did it determine where D should ultimately live.

Those issues remained to be determined through a procedurally fair welfare assessment on an appropriate factual basis.

Case reference

D (Change of Circumstances: Domestic Abuse Allegations) [2026] EWCA Civ 969
Court of Appeal (Civil Division)
Judgment handed down: 30 July 2026
Lord Justice Newey, Lady Justice Asplin and Lord Justice Baker.

Particularly relevant passages include paragraphs 100–103 on the welfare assessment, paragraphs 107–114 on the treatment of disputed domestic abuse allegations, and paragraphs 116–118 on reconsidering fact-finding and judicial continuity.

Read the Court of Appeal judgment

Need help responding to a section 7 report?

Official sources and further reading

• D (Change of Circumstances: Domestic Abuse Allegations) [2026] EWCA Civ 969 — Courts and Tribunals Judiciary
“`
• Practice Direction 12J — Child Arrangements and Contact Orders: Domestic Abuse and Harm
• Family Procedure Rules 2010, Part 16 — including rule 16.33 on welfare reports
• Children Act 1989, section 1 — welfare of the child
• Cafcass — Domestic Abuse Practice Guidance and Practice Pathway resources
“`