Daniel Swan represents respondent at the Court of Appeal

D (Change of Circumstances: Domestic Abuse Allegations [2026] EWCA Civ 969

Daniel appeared for the respondent in a second appeal against a child arrangements order.  The Court of Appeal in a lengthy judgement focussed on the inadequacy of reasoning in the judgment at first instance and the [wrong] reliance on a Section 7 report which was founded on the report’s author making his own determination of facts.

The judgment gives considerable focus to the proper application of Cafcass’s Domestic Abuse Practice Pathway and the associated guidance.  In delivering the leading judgment, Lord Justice Baker highlights that many of the terms in which the guidance documents are framed and the questions posed under the headings are on the basis that the abuse has been perpetrated and has been experienced by the child.  Similar observations were made about the Cafcass practice aid for assessing coercive control.

It was argued on behalf of the respondent that the Section 7 author in this case was simply following the guidance and practice aids that he was required to do in accordance with Cafcass’ procedure.  It was argued that this creates something of a conflict between the legal position and the approach that family court advisers are required to take by Cafcass.

At paragraph 110 of the judgment LJ Baker said this:

“It is crucial to evaluate the impact of the experience of abuse on the victim and child.  It is through the lived experience of victims that professionals have acquired a greater understanding of the nature and extent of abuse, including coercive control.  Where there is a dispute about whether abuse has occurred, however, a court’s finding must be based on an objective analysis of the evidence as a whole.  That analysis must be conducted by the court in accordance with the principles and practice identified in the case law cited at paragraphs 45 and 46 above and in PD12J.  The Cafcass Officer’s observations about the child and the parents may well provide important evidence as to whether domestic abuse is an issue within the family…but such observations can never be elevated into findings which, if not agreed, are a matter to be determined by the court [my emphasis].”

LJ Baker went on to cite the Practice Pathway’s provision for this, in which it is stated that “where there has been no fact finding ordered by domestic abuse concerns indicate that assessment cannot proceed without establishing facts, the practitioner should alert the court prior to filing a section 7 report.”

In concluding his judgment, LJ Baker made the following observations:

1. Where the court has decided at FHDRA that there should not be a fact finding into allegations of domestic abuse, but a section 7 report concludes that the allegations of abuse are a material factor in the decision about the child’s future, this should be expressly drawn to the court’s attention by the Cafcass officer and the parties and the question of whether to hold a fact-finding reviewed. There is of course the risk that this will add to the delay in reaching a decision about the future.  But that is less serios than the risk that court may make an order on a factual basis which has neither been agreed by the parties nor determined by the court.

2. The requirement to take this course is identified in the Practice Pathway in the section entitled “Legal and procedural issues to consider”. But as noted this si rather hidden in the current version between stages 2 and 3.  It occurs to me that in future versions it might be moved to a more prominent place in the document.  There may also be an argument for including the passage recited at paragraph 12 above as a recital in the standard template order made after a FHDRA.

3. LJ Baker’s third observation was the importance of judicial continuity.

It is suggested that this decision should serve as a reminder that it is for the court and the court alone to make findings.  The pitfalls for authors of section 7 reports are clear and obvious when the practice documents are scrutinised, but it is equally clear that they must alert the court if an assessment cannot proceed without first establishing the facts.

Moreover, the courts at FHDRA hearings will need to carefully reason a decision to depart from a recommendation in the safeguarding report that there should be a finding of fact hearing before a section 7 report can take place.

Finally, it was noted by the Court of Appeal that the fact that the parents in this case both accepted that the child should spend unsupervised time with the other, did not obviate the need for a fact-finding hearing, if, as the safeguarding letter stated, D was being caught up in controlling behaviours through the current arrangements and, as a result experiencing extreme distress.  As paragraph 6 of PD12J emphasises, it is the court’s obligation to scrutinise proposed arrangements agreed between the parties to ensure they meet the child’s welfare needs.