An important new judgment from the Court of Appeal was published on the judiciary website this week – Re C (Child Arrangements Orders; Domestic Abuse; Child Focused Court) [2026] EWCA Civ 1216
This was a case about contact between four children and their non-resident parent, following findings of domestic abuse, and how the courts should be approaching that in the context of the new Child Focused Courts (previously Pathfinder, now generally referred to as CFC) model. Rights of Women and Cafcass were joined as ‘interveners’ because they wanted to make some submissions that would assist the court.
The decision being appealed had been made in Wrexham Family Court, by a High Court judge, Mr Justice McKendrick, and it was therefore Cafcass Cymru that was involved, but Cafcass (England) joined with them to make their submissions
Rights of Women were looking for confirmation that the law developed in cases such as Re H-N [2021] and Re K [2022] – about how the family court should deal with cases of domestic abuse – continued in full force under the CFC model. They warned against:
… allowing an emphasis on expedition to undermine fairness. While the CFC model may reduce unnecessary delay, speed is not an end in itself, and proper consideration must be given to the need for parties, particularly unrepresented and vulnerable parties, to participate effectively in the process. [36]
Cafcass/Cafcass Cymru said they wanted guidance on the treatment of domestic abuse allegations under the CFC model on four issues:
- when fact-finding hearings are necessary;
- how FCAs should undertake welfare and risk assessments where allegations remain undetermined;
- how allegations of ongoing domestic abuse during or after proceedings should be approached; and
- how courts should evaluate reports from domestic abuse perpetrator programmes (DAPPs)
We understand that Cafcass family court advisers are having difficulties in assessing risks to children in some cases where fact-finding hearings are not being held.
There’s a helpful press summary of the judgment.
What the Court of Appeal said about the CFC:
- The introduction of the CFC model has changed procedure and culture, but has not changed the substantive law. The welfare of the child remains paramount and Practice Direction 12 J on dealing with allegations of abuse continues to apply in full.
- The CFC model is intentionally less adversarial, more investigative and more closely focused on the experiences of children and victim-survivors of domestic abuse.
- Not every allegation of domestic abuse requires a fact-finding hearing. The key question remains whether findings are necessary to provide a proper basis for assessing risk and determining the child’s welfare.
- Family courts must continue to recognise and properly analyse domestic abuse, including coercive and controlling behaviour, while also exercising effective case management and keeping proceedings fair and proportionate.
- In plain English, this means the judge has to keep the resources that are put into each case within bounds. Cases that take too long or too much professional time mean less attention is available for other cases.
- The more investigative nature of the CFC doesn’t reduce requirements for procedural fairness.
What had happened in this case
There were four children; the parents had been involved in proceedings about child arrangements since 2023. The father had admitted to a number of allegations of abuse made by the mother about the father. The children wanted to see him though, and the Cafcass guardian at the time didn’t recommend a fact-finding hearing because the father had made the admissions. There was no need to prove the allegations.
The original proceedings had ended like this:
A final order in the earlier proceedings was made in October 2024; this provided for the children to live with their mother, and for there to be supervised contact between the children and their father on alternate Saturdays for seven hours, and alternate Wednesdays for two hours. Supervision was to be provided by JM [a friend of the father] or by one of a number of named friends or (on a Wednesday) by the paternal grandmother. The order also provided for the father to have regular unrestricted telephone contact with A, and twice weekly telephone contact with the younger three children, provided he did not denigrate the mother. It was recorded that “the parties share joint and equal parental responsibility for the children and therefore the parties shall share and consult with each other in advance of making decisions about the children’s welfare including but not limited to foreign travel, religion, education, and health”. The father was to self-refer to an appropriate Domestic Abuse Perpetrators Programme. The judge also made an order (of one year’s duration) against the father under section 91(14) CA 1989.
However, matters deteriorated and each parent put in a new application in late 2025. The mother listed several breaches of the order by the father. She described the court-ordered contact as ‘a disaster’. Issues included the father’s non-compliance with attending a DAPP and whether supervision should be by a professional. There was also an issue about the father taking the children ‘wild swimming’ – not amongst the more pleasant activities to be followed in the climate of north Wales.
Under the CFC model, Cafcass Cymru filed a Child Impact Report in early 2026, so quite a while after the CFC was embedded in north Wales (where the Pilot began). This report recommended there be no direct contact. However McKendrick J disagreed – he concluded that despite the serious abuse and breaches, the children should not have the father ‘shut out of their life’. The judge noted that in previous proceedings, Cafcass and the district judge had decided some contact was in the children’s welfare and he did not consider the father’s more recent behaviour meant there should be no contact. He did however limit the father’s contact, making the following orders:
- He reduced the length of each of the fortnightly contacts (from seven hours to five hours);
- He reduced the frequency of contact to once per fortnight (instead of twice per fortnight) (i.e., he removed from the schedule the Wednesday contact);
- He imposed a requirement that there be no wild swimming in rivers or anything of a similar nature unless there is a lifeguard;
- He discharged completely the earlier order which had permitted telephone contact between the father and the children.
He refused the mother’s applications for a non-molestation order and that the father’s PR be removed.
The mother appealed.
The Court of Appeal judgment highlights this summary of the mother’s concerns by her barrister [100-101]:
Ms Perrins KC contended that one single factor underpinned these grounds, namely that the Judge had minimised, compartmentalised and wrongly excused the evidence of the father’s harmful behaviour and had given insufficient attention to the fact that the mother had been the victim of coercive and controlling behaviour. The Judge’s failures in these respects were compounded by the overly summary manner in which he had disposed of the case in the name of ‘Pathfinder’ private law reforms. She contended that the Judge failed to give proper consideration to whether a fact-finding hearing should be held either separately or at the same time as a decision hearing. The Judge had failed to note that the FCA had recommended that “disputed allegations of domestic abuse or harm … need to be determined before the case can be concluded” albeit not as a separate fact-finding exercise. Specifically, it was argued that judge had misinterpreted what was required of him under the Pathfinder model (PD36Z / PD12B(Pilot)). She argued that the new model should not create unfairness and/or limit proper consideration of domestic abuse when it remains relevant to the court’s determination of welfare issues.
Decision on the appeal
However, the Court of Appeal concluded that McKendrick J had properly followed the relevant practice direction and case law in addressing abuse allegations. The only ground of appeal that was successful was to lift a section 91(14) order against the mother, although this will continue against the father.
There are some troubling aspects in this case about the availability of DAPPs. The President said:
although the father had attempted to comply with the court’s expectations to engage with a perpetrator programme, the course recommended by the rule 16.4 guardian was not in fact available. It seems likely that the course he did attend (‘Temper’) did not correspond to the model which the rule 16.4 guardian and the judge had contemplated. Whatever the merits or otherwise of the particular course (and Ms Perrins was plainly entitled on the evidence to raise significant question marks about it), the Judge’s fundamental conclusion was that the father’s insight into his behaviours, even after the course, remained limited.
Comment
While it may seem surprising that the Court of Appeal needed to confirm that the CFC procedure had not changed the law, the acceptance of the interventions of RoW and Cafcass indicate that there were some wider issues of public interest were raised by McKendrick J’s judgment. There was a perception that some cases under the CFC were being rushed through without full consideration of the impact of domestic abuse on children. Although the Court of Appeal didn’t think new guidance for Cafcass was necessary, it can be hoped that this new judgment will reset the position to maintain the improvements that have been made in the years since Re H-N and to continue to better protect victims.
Rights of Women have published a response – while they are disappointed about the outcome of the case for the mother and children, they welcome the President’s reassurance on the principles to be followed.
Image: Pathway in the forest – thanks Jurnej Furman, Wikimedia Commons
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