The above practice direction, originally issued on 9 May 2008, was reissued on 14 January 2009 to reflect the decision of the House of Lords in Re B (Children)  UKHL 35.
In Re B, Baroness Hale confirmed that a fact-finding hearing is part of the process of trying a case and is not a separate exercise. Where the court has made findings on disputed allegations and where the case is then adjourned for further hearing, it remains part-heard. Accordingly, unless it would result in delay to the planned timetable resulting in detriment to the welfare of the child, the further hearing for the determination of the application should be listed before the same judge or, in the magistrates’ court, by at least the same chairperson of the justices. This principle applies equally to private law and public law family cases.
Although the revised version only makes changes to paragraphs 15 and 23 of the 2008 practice direction, its reissue provides a useful opportunity to consider the practice direction as a whole and what practical lessons can be learned for practitioners.
The first general point to make is that the practice direction is to be followed in any case in which it is alleged, or there is otherwise reason to suppose, that the subject child or a party has experienced domestic violence perpetrated by another party, or that there is a risk of such violence. In that case, the court must: identify at the earliest opportunity the factual and welfare issues involved; consider the nature of the allegations and the extent to which allegations admitted, or which may be proved, would be relevant in deciding whether to make an order for residence or contact; give directions to enable the factual and welfare issues to be determined expeditiously and fairly.
The second general point to make is that any proposed residence or contact order, even if it is to be made by agreement between the parties, must be scrutinised by the court to consider whether it accords with section 1(1) of the 1989 act or section 1(2) of the 2002 act. Importantly, the court shall not make a consent order for residence or contact or give permission for an application for such an order to be withdrawn, unless the parties are present in court, except where it is satisfied that there is no risk to the child in so doing. So, if practitioners want the court to deal with such orders without the need for their attendance, the covering letter needs to address this issue.
At the first hearing the court should consider whether the nature and effect of the domestic violence alleged is such that, if proved, the decision of the court is likely to be affected. (See Re L (Contact: Domestic Violence)  2 FLR 334.) Where the court considers that a fact-finding hearing is necessary before a final order can be made, it must give directions to ensure that the matters are determined expeditiously and fairly, including the filing of witness statements and material from third parties, for example the police and health services. Where a finding of fact hearing is not considered necessary, the order shall record the reasons for that decision. To assist the court to identify the likely issues I suggest that, prior to the first appointment, the resident parent files a response to the application setting out the basis of the objections to contact together with a draft schedule of allegations, limited to the 10 most serious.
It may be appropriate to ask a Cafcass officer to ascertain the wishes and feelings of the child before any findings have been made and, with children of a certain age, that may be determinative without more. That also avoids the inevitable delay of a full report. Subject to the seriousness of the allegations made and the difficulty of the case, the child may also be made a party to the proceedings and be separately represented.
When determining whether to make residence or contact orders, the welfare checklist should be applied to any findings made. In particular, the court should consider the harm a child has suffered as a result of any domestic violence and any harm the child is at risk of suffering if a residence or contact order is made. It should only make a contact order if satisfied the physical and emotional safety of the child and resident parent can be secured before, during and after contact. Factors to consider include: the effect of the domestic violence on the child and resident parent; the motives of the parent seeking contact; his/her likely behaviour during contact; his/her capacity to appreciate the effect of past violence; and his/her capacity to change and behave appropriately.
Importantly, in its judgment or reasons, the court should always make clear how its findings on the issue of domestic violence have influenced its decision on the issue of residence or contact. In particular, where the court has found domestic violence proved but nonetheless makes an order, the court should always explain, whether by way of reference to the welfare checklist or otherwise, why it takes the view that the order which it has made is in the best interests of the child. It must decide: whether contact should be supervised; whether any conditions should be imposed; whether such contact should be for a specified period: and whether it should be reviewed. Practitioners might want to consider whether any expert evidence, for example a risk assessment, may assist the court in making its decision.
Some judges and practitioners have interpreted the practice direction as requiring more fact-finding hearings. That is not what it says. It simply requires the court to consider the issue of domestic violence at all stages and the impact, if proved, on any likely contact order. It does not change what are now very familiar principles in Re L. On some occasions a fact-finding hearing cannot be avoided.
There are, however, likely to be many more occasions when such hearings are not only not going to affect the outcome but will also be very painful to at least one of the parties who, by that time, may prefer to move on, accepting the principle of contact. Raking over historic allegations, further polarising the parties who will remain the parents of the particular child is unlikely to be an exercise in the best interests of the child. A proportionate approach is required by practitioners and judges alike.
District Judge Julie Exton sits at Bristol County Court