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FHDRAs: what should and shouldn’t happen

Marie Crawford, barrister of Becket Chambers, considers the orders a court might make at first hearing and dispute resolution appointment.













Marie Crawford, barrister of Becket Chambers, considers the orders a court might make at first hearing and dispute resolution appointment.

I decided to look in detail at the First Hearing and Dispute Resolution Appointment as a result of a recent experience in a Tier 1 family court, where there appeared to be some confusion as to what orders the court should and should not make at this stage of the proceedings. This subject, which is admittedly quite dry (being governed mainly by the FPR 2010), is nevertheless one which is vitally important to litigants and practitioners in family proceedings. The FHDRA and the orders made set the tone for the rest of the proceedings and can be determinative of a number of issues, sometimes even the main one, such as whether there should be contact at all.

All that follows concerning Practice Direction 12J and cases of domestic violence and abuse is subject to the review and revisions proposed by Mr. Justice Cobb, published in January 2017. The proposals significantly change PD12J, however those changes are too substantial to be dealt with here. They are however considered in detail in the article Children's Cases where Domestic Abuse is an Issue: Proposed Practice Direction 12J analysed. In its current form paragraph 6 of PD 12J states:

"The court must at all stages of the proceedings, and specifically at the FHDRA, consider whether domestic violence is raised as an issue, either by the parties, or by Cafcass, or otherwise and if so must-

• Identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;

• Consider the nature of any allegation, admission or evidence of domestic violence or abuse and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;

• Give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;

• Ensure that where violence or abuse is admitted or proven, that any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose them to risk of further harm. In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated violence or abuse is safe and in the best interests of the child; and

• Ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25-27 below.
"

Paragraph 9 states:

"Where any information provided to the court before the FHDRA or other first hearing (whether as a result of initial safeguarding enquiries by Cafcass or on form C1A or otherwise) indicates that there are issues of domestic violence or abuse which may be relevant to the court's determination, the court must ensure that the issues are addressed at the hearing, and that the parties are not expected to engage in conciliation or other forms of dispute resolution which are not suitable."

Paragraphs 25-27 state:

"Interim orders before determination of relevant facts
25. Where the court gives directions for a fact-finding hearing, the court should consider whether an interim CAO is in the interests of the child; and in particular whether the safety of the child and (bearing in mind the impact which domestic violence against a parent can have on the emotional well-being of the child) the parent who has made the allegation and is at any time caring for the child can be secured before, during and after any contact.

26. In deciding any interim child arrangements questions pending a full hearing the court should-

(a) take into account the matters set out in section 1(3) of the Children Act 1989 (the welfare checklist) and

(b) give particular consideration to the likely effect on the child, and on the care given to the child by the parent who has made the allegation of domestic violence, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and the parent is likely to suffer as a consequence of making or declining to make an order.

27. Where the court is considering whether to make an order for interim contact, it should in addition consider-

(a) the arrangements required to ensure, as far as possible, that any risk of harm to the child and the parent who is at any time caring for the child is minimized and that the safety of the child and the parties is secured; and in particular:

(i) whether the contact should be supervised or supported, and if so, where and by whom: and

(ii) the availability of appropriate facilities for that purpose

(b) If direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact; and

(c) Whether contact will be beneficial for the child.
"

When domestic violence or abuse is raised, it needs to be considered whether a fact-finding hearing is necessary, identify the factual and welfare issues involved, and also the extent to which it is relevant to any order the court may make. In addition, where allegations are admitted or proven, any order the court makes must ensure the safety and well-being of any child and the parent with whom the child lives and does not expose them to risk of further harm; that is safe and in the best interests of the child (Paragraph 6).

Any child arrangements order made before facts are determined or admitted (whether that be in a separate fact finding or in a composite hearing) should only be made if it is in the interests of the child and only if the safety of the child and resident parent can be secured. It is very clear from Paragraph 26 that pending full determination, the welfare checklist must be applied (which it is difficult for the court to do without a Cafcass report or evidence of the parties). And the court must consider the likely effect on the child, and on the care given to the child by the parent making the allegation, of any order for contact and any risk of harm (physical, emotional or psychological) which the child and parent are likely to suffer 'as a consequence of making or declining to make an order'. This can only realistically be referring to any harm the child may suffer if an order for contact is not made.

If the court is considering making an interim order in these circumstances, by virtue of paragraph 27 it must additionally consider the arrangements required to make that contact safe, minimize the risk of harm to the child and parent and specifically consider whether that contact should be supervised or supported and what those arrangements would entail. Finally, it must consider whether the contact would be beneficial for the child.

Therefore, the presumption appears to be that where there are admissions or facts proved of domestic violence and abuse, if contact can be made safe for the child and parent and does not expose them to risk of further harm and is in the best interests of the child, then it will probably be ordered. The rationale for this may be that by this stage facts will have been determined or admitted on evidence filed (if later in the proceedings) or at court and noted by the court, although it is not entirely clear. Evidence is specifically prohibited until directed by the court and that cannot happen until the FHDRA (para 17).

However interim orders made before the determination of relevant facts are much more closely considered and additional criteria are applied (paras 25-27 above). The court is also required in these circumstances to apply the welfare checklist (para 26). In any event, in all cases where the court is considering making a s.8 order it must do so under s.1(3) of the CA 1989, so this would also apply to cases where allegations are admitted or proved, even though it does not specifically say so in PD12 J (para 6). It is difficult to see how the court would be able to apply the welfare checklist without ordering a Cafcass report.

In cases where factual determination is pending, the court must additionally consider the likely effect of contact on the child and the care given to them by the parent making the allegations and any risk of harm the child and parent are likely to suffer as a result of making or declining to make an order (Paragraph 26). Therefore there is a 'balance of harm' test in these circumstances. It must also additionally consider the arrangements necessary to minimize those risks and is particularly required to consider whether that contact be supervised or supported and the availability of facilities for that. This is different from when the allegations are admitted or proven (when the requirement is simply to ensure any arrangements protect the safety and well-being of the child and parent and is in the child's interests).

It does seem odd that where domestic violence is admitted or proved the test for whether contact should be ordered is seemingly 'lower' than when the facts have yet to be determined on any such allegations.

It may be that the different requirements of the rules are as a result of the difference between dealing with a known risk and an unknown risk. Where there is an unknown risk, it may have been considered that the court needs to be more careful before making an order for contact and specifically consider whether it should be supervised. Conversely, it was apparently considered that where there were there are known facts of domestic abuse the test need not be so stringent. This doesn't seem logical or easy to justify on that basis, however.

Paragraph 7 states:

"In all cases it is for the court to decide whether a child arrangements order accords with s.1(1) of the Children Act 1989; any proposed child arrangements order, whether to be made by agreement between the parties or otherwise must be scrutinized by the court accordingly. The court shall not make a child arrangements order by consent or give permission for an application for a child arrangements order to be withdrawn, unless the parties are present in court, all initial safeguarding checks have been obtained by the court, and an Officer of Cafcass has spoken to the parties separately, except where it is satisfied that there is no risk of harm to the child in so doing ".

This makes it clear that the 'paramountcy principle' applies to all cases, even if agreed between the parties and that even agreed orders should be scrutinized by the court. It is hard to conceive that a court would not approve an agreed order, but according to the rules at least the same requirements apply to agreed orders. It could also be argued that this 'scrutiny' is difficult to achieve with only safeguarding information from Cafcass and no other available evidence before the court.

Paragraph 8 makes it clear that Cafcass reports can be ordered before the court makes its decision where there is an agreed order and it must consider all the evidence and information available to it and the court must consider whether there is any risk of harm to a child before making an order.

Paragraph 11 states:

"First hearing FHDRA
At the FHDRA, if the parties have not been provided with the safeguarding letter/report by Cafcass, the court shall inform the parties of the content of any safeguarding letter or report or other information which has been provided by Cafcass, unless it considers that to do so would create a risk of harm to a party or the child".

Paragraph 12 states:

'Where the results of Cafcass safeguarding checks are not available at the FHDRA, and no other reliable safeguarding information is available, the court shall adjourn the FHDRA until the results of the safeguarding checks are available. The court shall not generally make an interim child arrangements order, or orders for contact, in the absence of safeguarding information, unless it is to protect the safety of the child".

At the FHDRA, if you have not already received it, the Safeguarding Letter to the court will be given to you. It is made very clear in the rules that no interim orders should be made in the absence of this information, even if agreed. The words 'unless it is to protect the safety of the child' must presumably mean making an interim 'residence' order or an order that there be no contact. It is hard to imagine what other orders would be made without safeguarding information, although I have seen many orders made in these circumstances, both orders that are agreed and those made by the court without consent . I am sure that many other family practitioners have too.

Paragraph 21 states:

"Reports under Section 7
In any case where a risk of harm to a child resulting from domestic violence or abuse is raised as an issue, the court should consider directing that a report on the question of contact, or any other matters relating to the welfare of the child, be prepared under section 7 of the Children Act 1989 by an officer of Cafcass, unless the court is satisfied that it is not necessary to do so in order to safeguard the child's interests.

Where domestic violence or abuse is raised as an issue, a s.7 report should be considered by the court (although it is suggested in the rules that it be filed after any fact-finding hearing (Paragraph 22)). There is therefore a presumption in favour of a s.7 report unless the court considers it is not necessary to safeguard the child's interests. It must rarely be the case where it would not be necessary.

Practice Direction 12B states:

Paragraph 4:
4.1 "In making any arrangements with respect to a child, the child's welfare must be the highest priority.

4.2 Children and young people should be at the centre of all decision making. This accords with the Family Justice Young People's Board Charter.

4.3 The child or young person should feel that their needs, wishes and feelings have been considered in the arrangements, which are made for them.

4.4 Children should be involved, to the extent which is appropriate given their age and level of understanding, in making the arrangements which affect them." It then goes onto say this is a relevant whether the arrangements are agreed or where the court is required to make a decision.

This Practice Direction applies to all FHDRAs, whether there are allegations of domestic violence or not. It is interesting that it is clearly stated that the child must be involved in the process and his or her wishes and feelings should be considered (also a requirement of the welfare checklist). It is difficult to see how that can be done without a s.7 report and we are told that s.7 reports will be ordered only where there are 'welfare issues' (as per para 14.3 below). It also explicitly applies when the arrangements are agreed between the parties (para 4.4.1). Current practice, which is that unless the court orders a s.7 report or at least a 'wishes and feelings report', suggests that this part of the Practice Direction is not being complied with in many, if not most cases. In cases where an order is agreed at the FHDRA, it is never complied with.

Paragraph 11:

11.1 Section 1 of the Children Act 1989 applies to all applications for orders concerning the upbringing of children. This means that:

(1)  the child's welfare is the court's paramount consideration;

(2) delay is likely to be prejudicial to the welfare of the child, and

(3) a court order shall not be made unless the court considers that making an order would be better for the child than making no order at all.

11.2 Parties and the court must also have regard to the FPR in particular the following:

(1) FPR Rule 1. The 'overriding objective' will apply, so that the court will deal with a case justly, having regard to the welfare issues involved and specifically will:

(a) ensure that the case is dealt with expeditiously and fairly;

(b) deal with the case in ways, which are proportionate to the nature, importance and complexity of the issues;

(c) ensure the parties are on an equal footing;

(d) save expense;

(e) allot each case a proportionate share of the court's resources, while taking account of the need to allot resources to other cases".

The no order principle specifically applies, as does the 'overriding objective'.

Paragraph 13 (Safeguarding):

13.1 "where an application is made for a CAO (but not necessarily for specific issue or prohibited steps orders), before the FHDRA (see paragraph 14 below) Cafcass shall identify any safety issues by the steps outlined below.

13.3 In order to inform the court of possible risks of harm to the child Cafcass will carry out safeguarding enquiries

13.5 Cafcass shall record and outline any safety issues for the court in the form of a Safeguarding letter.

13.6 The Cafcass Officer will not initiate contact with the child prior to the FHDRA.

13.7 …the Cafcass officer shall report to the court, in a safeguarding letter, the outcome of the risk identification work which has been undertaken".

Since the Cafcass officer does not have any contact with the child prior to the FHDRA, the child's wishes and feelings cannot be obtained until after that point, at the earliest.

Paragraph 14 (FHDRA):

14.7 "The Cafcass Officer or WFPO shall, where practicable speak separately to each party at court before the hearing in particular where it has not been possible to conduct a risk identification interview with either party.

14.8 The FHDRA provides an opportunity for the parties to be helped to an understanding of the issues, which divide them, and reach agreement. If agreement is reached:

(1) The court will be able to make an order (which in many cases will be a final order) reflecting that agreement".

14.11 At the FHDRA the Judge, working with the Cafcass Officer, or WFPO, will seek to assist the parties in conciliation and in resolution of all or any of the issues between them. Any remaining issues will be identified, the Cafcass Officer or WFPO will advise the court of any recommended means of resolving such issues, and directions will be given for the future resolution of such issues. At all times the decisions of the Court and the work of the Cafcass Officer or WFPO will take account of any risk or safeguarding issues that have been identified.

14.12 The court should have information obtained through safeguarding checks carried out by Cafcass, to ensure that any agreement between the Parties, or any dispute resolution process selected, is in the interests of the child and safe for all concerned.

14.13 The FHDRA will be conducted in the most appropriate way in the interests of the child. In particular, the Court shall consider the following matters:

• Safeguarding, in this respect:

(a) The court shall inform the Parties of the content of the Safeguarding Letter provided by Cafcass, where it has not already been sent by Cafcass, unless it considers to do so would create a risk of harm to a party or the child….

The Court will further consider:
(b) whether a fact-finding hearing is needed to determine allegations which are not accepted, and whose resolution is likely to effect the decision of the court.

(c) risk identification followed by active case management including risk assessment and compliance with the Practice Direction 12J.

Further:
(d) If the safeguarding information is (contrary to the arrangements set out in the CAP) not available at the FHDRA, the court should adjourn the application until the safeguarding checks are available. Interim orders (unless to protect the safety of a child) should not be made in the absence of safeguarding checks

• Reports

(a) reports may be ordered where there are welfare issues or other specific considerations which should be addressed in a report by Cafcass or the local authority…

• Wishes and feelings of the child

(a) in line with the Family Justice Young People's Board Charter, children and young people should be at the centre of all proceedings.

(b) the child or young person should feel that their needs, wishes and feelings have been considered in the court process.

(c) each decision should be assessed on its impact on the child.

(d) the court must consider the wishes and feelings of the child, ascertainable so far as is possible in light of the child's age and understanding and circumstances. Specifically the court should ask:

(i) is the child aware of the proceedings?

(ii) are the wishes and feelings of the child available, and/or to be ascertained (if at all)?

(iii) how is the child to be involved in the proceedings, and if so, how; for example, should they meet the Judge/Lay Justices? Should they be encouraged to write to the court, or have their views reported by Cafcass or by a local authority?"

• Case Management

(a) what if any issues are agreed and what are the key issues to be determined?

(b) should the matter be listed for a fact-finding hearing?

(c) are there any interim orders which can usefully be made (e.g. indirect, supported or supervised contact) pending Dispute Resolution Appointment or final hearing?

(d) What directions are required to ensure the application is ready for a Dispute Resolution Appointment or final hearing – statements, reports etc?

(e) Should the application be listed for a Dispute Resolution Appointment (it is envisaged that most cases will be so listed)?

(f) Should the application be listed straight away for a final hearing?

(g) Judicial continuity should be actively considered (especially if there has been or is to be a fact finding hearing or a contested interim hearing).

Paragraph 14 sets out what is to be achieved at a FHDRA. The parties are to resolve any issues that can be resolved and identify those that cannot be and directions will be given for the future resolution of such issues. The court is to endeavor to make orders if possible, which in many cases will be final orders (para 14.8). This implies that only agreed orders can be made, yet I have seen courts make orders which are opposed and despite there being many disputed issues. It is also important to remember that the court has no evidence upon which to base decisions at this stage.

The decisions of the court are to take into account at all times the risks or safeguarding issues identified, even if the order is agreed (para 14.12) and ensure the order is in the child's interests. The court will identify risks and order a risk assessment if necessary. What is striking about this part of the Practice Direction is that it says that if the safeguarding information is not available at the FHDRA, it should be adjourned until it is available. This applies whether the parties are agreed or not. It specifically says that interim order should not be made in the absence of safeguarding checks (para 14.13). This appears to be overlooked by the courts, in my experience anyway, particularly if the parties are agreed.

The court will comply with PD 12J above if domestic violence is an issue.

Reports may be ordered where there are 'welfare issues or other specific considerations which should be addressed…' This is therefore not an absolute requirement, even when there are welfare concerns, which seems hard to justify. Surely there should be a report if there are welfare concerns. However, in most cases it would be hoped that a report would be ordered in those circumstances.

Again, it is stated that the court must consider the child's wishes and feelings. This is an absolute requirement. It does not however state that they must be obtained, just that they must be considered. Paragraph 14.13 states they must consider whether they should be obtained! Yet how can they be considered if they are not obtained? In addition, the court must also specifically consider how the child should be involved in the proceedings.

This is perhaps the most confusing part of the Practice Direction given that the only way that the requirement that children be at the centre of all proceedings, and that the child should feel that their needs, wishes and feelings have been considered in the court process and that each decision should be assessed on its impact on the child can be reliably and independently achieved is surely via a Cafcass report. However, Cafcass specifically do not speak to the child before the FHDRA. In addition, reports are ordered only if there is welfare issues or other specific considerations. Presumably the child's wishes and feelings could be other specific considerations; however it would be interesting to see how many times Cafcass reports are ordered for this purpose – not very often in my experience. Cafcass reports are ordered generally to consider welfare issues, not the child's wishes and feelings. The child's wishes and feelings seem to be rarely separately considered from welfare issues and I haven't seen any evidence at FHDRAs that the court considers how the child is to be involved in the proceedings.

PD 12B applies even when an order is agreed by the parties. It certainly seems to be, as far as I am aware, almost unknown for a court to carry out this requirement to consider the child's wishes and feelings when an order is agreed.

Given what is said under Case Management (are there any interim orders that can usefully be made e.g. indirect, supported or supervised contact?) seems to suggest that pending a further hearing, those are the only types of contact it is envisaged would be ordered at a FHDRA in the absence of agreement. There is no evidence before the court from the Parties at this stage, in fact, filing evidence is specifically prohibited:

Paragraph 17 Evidence

17.1 "no evidence shall be filed in relation to an application until after the FHDRA unless:

(1) It has been filed in support of a without notice application;

(2) It has been directed by the Court by the directions on issue;

(3) It has been directed by the Court for the purposes of determining an interim application.

In light of the fact no evidence is filed at this stage, it would appear difficult for the court to make interim decisions in contested cases. It would also appear impossible for them to comply with the requirement to consider the child's wishes and feelings without any evidence. It seems to be suggested that before a contested interim application is determined, evidence should be filed or heard (para 17.1(3)), which makes sense. The only evidence the court is able to act upon to achieve all of these objectives and ensure that contact is safe and in the interests of the child, is the Safeguarding Letter.

Section 1 Children Act 1989 applies to all cases under s.8, as does the 'no order principle'.

The paramountcy principle has already been set out above. The welfare checklist is set out in s.1(3), which applies in all cases where:

"the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings" (s.1(4)).

Section1(3) states:

"In the circumstances mentioned in subsection (4), a court shall have regard in particular to-

(a) the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question"

Section 1(5) states:

"Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all'.

It seems to me that the court would need to consider some evidence from the parties and/or a Cafcass report in order to consider the welfare checklist (which it is required to do when making any s.8 orders). How this could be done at a FHDRA when there is no evidence before the court is very difficult to envisage, as far as I can see, and it would seem that if the rules were strictly applied that evidence from the parties and/or a Cafcass report are required before making any interim or final orders (whether by agreement or not) (Paragraph 17), no orders would ever be made at a FHDRA because the court would be unable to consider the welfare checklist or obtain the views of the child. Even to comply with the no order principle (s.1(5)) could be argued to require far more information than is before the court at a FHDRA, which is only the Safeguarding Letter to the court.

It appears that the stated objectives of the FHDRA, to reach agreement if possible and for the court to make an order, which it is hoped will be a final order, is in direct conflict with the other requirements within the Practice Direction as to scrutiny in relation to risks and safeguarding, obtaining the views of the children (and placing them at the centre of the decision making process) and applying the welfare checklist, paramountcy principle and no order principle. This seems to be a very big undertaking for a first hearing on applications, where no evidence has been filed and the only information the court has, is the Cafcass Safeguarding Letter.

The Court's objectives for a FHDRA, according to the Practice Direction can therefore be summarized as follows (these apply whether orders are by consent or not):

1. Resolve issues and make an order/final order if possible.

2. Identify the issues not agreed and make directions for their resolution.

3. Ensure any order made is safe and in the child's interests. If the Safeguarding information is not available, the case should be adjourned and no order made.

4. Identify risks and order a risk assessment.

5. If domestic violence or abuse is raised comply with PD 12 J and consider a fact-finding hearing. If order interim contact apply one of the 2 different tests depending on whether there have been facts proved or admitted.

6. Order s.7 reports if welfare issues or where PD 12 J applies is a presumption that a report should be ordered, or even if order agreed if risk of harm.

7. Consider wishes and feelings of child and how the child should be involved in proceedings.

8. Only make interim orders if they are agreed.

9. Apply the Welfare Checklist.

10. Apply the paramountcy and no order principles.

This detailed consideration of what should and shouldn't happen at a FHDRA has certainly brought unexpected and surprising results.

8/6/17