Child-Focused Courts: An article by Barrister Niamh Fegan
Niamh Fegan is a barrister at Proudmans, on secondment from Goldsmith Chambers, specialising in family law. She is committed to ensuring that children’s voices are heard and their welfare and safeguarding needs remain central to proceedings. Her work reflects Proudmans’ commitment to trauma-informed practice and protecting the rights of children and families.
In a landmark judgment delivered by Sir Stephen Cobb, recently appointed President of the Family Division, the Court of Appeal has considered the new “Child Focused Court” (CFC) model for the first time. The case is Re C (Child Arrangements Orders; Domestic Abuse; Child Focused Court) [2026] EWCA Civ 1216.
Background
The appeal was brought by a mother against a final child arrangements order concerning her four children.
During proceedings, the father admitted several allegations of domestic abuse including controlling and socially isolating the mother, smacking the children, and ill-treatment of the youngest child. A psychological assessment found the father demonstrated traits, inter alia, aggressiveness, irresponsibility and a lack of remorse.
A final order in a prior set of proceedings provided for direct contact between the father and the children, supervised by an agreed third party. It also directed the father to self-refer to an appropriate Domestic Abuse Perpetrators Programme, with which he failed to comply.
The mother commenced the second proceedings as there were “persistent and grave breaches” of the first order because contact was not adequately supervised, which the father accepted.
The Child Impact Report undertaken by Cafcass Cymru recommended:
Cessation of direct contact between the children and the father;
A non-molestation order against the father;
A prohibited steps order preventing the father from removing the children from the mother’s care; and,
An order under s91(14) Children Act 1989 against the father.
The order under appeal:
Permitted regular direct contact between the children and the father, with additional time during holidays, supervised by one of several named family friends who has been briefed about risk by Cafcass Cymru;
Refused the mother’s applications for removal or significant curtailment of the father’s parental responsibility;
Declined to make a prohibited steps order to restrain the father from removing the children from the mother’s care;
Made a barring order against both parties under section 91(14) Children Act 1989.
Grounds of appeal
The mother appealed the final order on the following grounds, summarised:
The Judge was wrong to order direct contact against the recommendation of Cafcass Cymru, against a background of admitted abuse;
The Judge’s assessment of the evidence was wrong;
The Judge managed the hearing “too summarily” in adherence to the CFC model which led to flawed decision making, a failure to conduct fact-finding, limited oral evidence, wrongly admitted evidence from the contact superviser, and he effectively prejudged the outcome;
The errors in ground 3 amounted to a procedural irregularity;
The Judge was wrong to refuse the mother’s application for a restriction of father’s parental responsibility, a prohibited steps order, and a non-molestation order;
The Judge was wrong to make a section 91(14) CA 1989 order against the mother.
The mother’s appeal was unsuccessful save for in relation to ground 6.
Practice Direction 36Z
The two-stage process of decision-making in the CFC is set out in Practice Direction 36Z:
Stage 1 – Information Gathering and Assessment.
The first stage will usually involve the Court making directions for a Child Impact Report, followed by consideration of the necessary steps to progress the matter in light of the report. Stage 1 is conducted without any direct input from the parties aside from their court applications.
Significant decisions can be made without any attended hearings. For example, pursuant to paragraph 14.2, the Judge may consider whether a fact-finding hearing is needed within stage 1, without hearing from the parties on the issue.
Stage 2 – Interventions and/or Decision Hearing.
The second stage is designed to finalise proceedings, with activity directions, a consent order, an order to engage in non-court dispute resolution, or a Decision Hearing. It is open to the Court to dispose of proceedings without holding an attended hearing at all. The only hearing that the rules say might be held is a Decision Hearing, at which it is envisaged that final decisions will be made on welfare issues.
Judgment on CFC and domestic abuse
The judgement is crystal clear that the CFC model does not displace the legal processes and safeguards in place which are designed to protect children who have been victim to domestic abuse, and their primary carers (at [45]).
Practice Direction 12J, for example, is described as remaining a “central safeguard” in cases involving domestic abuse (at [18]).
In respect of grounds 3 and 4 of this appeal, on the particular facts, the Court found that the Judge had adopted the appropriate procedure, applied PD 12J, and had appropriately balanced it with the overriding objective when limiting the scope of the hearing ([103] to [114]).
There are ongoing concerns about whether the Court can maintain legal safeguards such as PD 12J within the process outlined in PD 36Z. The CFC encourages swift decisions with limited opportunity to hear directly from the parties. The Court of Appeal did not offer any practical assistance on how to ensure that important frameworks such as PD 12J is preserved in such cases.
Rights of Women intervention
The intervention of Rights of Women, by written submissions, highlighted the issues the mother’s ground 3 appeared to focus on. For example:
RoW submits that particular care is required at the early stages of the CFC process when decisions may be taken on the basis of a CIR and domestic abuse assessments without an oral hearing. While recognising the advantages of early issue identification, RoW contends that courts should proceed cautiously when determining whether a fact-finding hearing is required. Where the disputed issues are unclear, the safer course may be to list a hearing so that the parties can explain their positions directly. RoW further submits that final orders should not be made at an early stage unless the court is satisfied, through direct engagement with the parties, that any agreement is genuine and informed.
There is considerable force in RoW’s submissions. In response, the Court primarily reiterates that CFC does not displace the existing legal frameworks surrounding domestic abuse in the Family Court. The Court does not grapple with the practical issues such as the necessity of listing hearings before the matter progresses onto Stage 2.
Cafcass intervention
Cafcass sought guidance on the treatment of domestic abuse allegations within the CFC model.
Its submissions revolved around the difficulty of reporting and giving recommendations where domestic abuse has been alleged but is disputed, and there is no established factual matrix:
[Cafcass] contends that risk assessments cannot properly be undertaken if practitioners are confined to considering only matters formally established in court, particularly where children describe experiences that have not been the subject of judicial determination. Cafcass / Cafcass Cymru warn that preventing practitioners from taking account of such information risks minimising domestic abuse and exposing children to continued harm. [39]
This submission highlights the potential issues arising where decisions are made based on a sole Child Impact Report, before the Court has investigated domestic abuse allegations, against the underlying legal framework. It casts doubt on the usefulness and reliability of those initial recommendations as final, if the Court has not yet engaged with the underlying legal framework designed to protect victim-survivors.
The Court did not find it necessary to provide the guidance requested by Cafcass ([49]). This is a missed opportunity.
The fact that Cafcass was compelled to intervene to invite guidance suggests that advisers are finding it difficult to handle domestic abuse allegations within the CFC model.
Although the Court directs Cafcass to Re D (Change of Circumstances: Domestic Abuse) [2026] EWCA Civ 969, that judgment was more concerned with section 7 reports than Child Impact Reports in the CFC, and does not address all the issues on which Cafcass sought guidance in this appeal.
Fact-finding hearings
The Court reiterated the law on when to direct a fact-finding hearing (at [46]). The question is whether findings of fact are “necessary” in order to provide a proper foundation for the assessment of future risk and for the welfare decisions. The judgment notes:
By way of obvious example, if the dispute is about the amount of contact rather than the principle of contact then fact-finding about previous abuse is less likely to be necessary.
It is arguable that this is not an “obvious” example of when a fact-finding hearing is less likely to be necessary.
Parties might be in dispute about the necessity of supervision, the extent of supervision required, the appropriateness of indirect contact, whether overnight contact is safe, or whether contact is only safe in the community.
These are not black and white disputes about whether contact can or cannot happen. Nonetheless, previous abusive patterns and dynamics could certainly have a bearing on the Court’s decision in respect of, for example, whether contact can be overnight.
No case is the same, just as no child is the same. The test of necessity is fact-specific. The President does not explicitly rule otherwise. His use of this example does not purport to change the law. Representatives should be cautious of the Court having this example in their mind when determining whether to have a fact-finding hearing.
Conclusion
This judgment sends an unwavering message that the CFC must preserve the hard-won legal protections for victim-survivors in Family Court. However, there remain outstanding questions about how this preservation will be achieved in practice. Adequate investigation and consideration of domestic abuse should not be sacrificed in the pursuit of speed.
Published 20th October 2026
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