Private Children Law Update May 2025
Katherine Goss and Richard Harrington, family law barristers at Parklane Plowden chambers were invited to speak at the West Yorkshire Local Family Justice Board annual Private Law conference on 16 May 2025. Among the delegates were key stakeholders in Family Law in the region including members of the judiciary, lawyers, social workers, Cafcass and domestic abuse workers. Law students from the University of Law which sponsored the event were also in the audience.
Katherine and Richard provided the following Private Law update:
We began by exploring the judicial approach to fact-finding hearings in private law proceedings, particularly where serious allegations of domestic abuse have already led to criminal convictions. Mrs Justice Lieven and Cobb J in several cases have previously emphasised that the family court is not there to forensically examine relationship breakdowns but instead to make welfare decisions in respect of the child. Reliance on written evidence, including the parents’ witness statements, CAFCASS reports and probation reports, can be sufficient to proceed straight to the welfare stage. The guidance is clear: fact-finding hearings should only be held where necessary and proportionate, and not as a default step.
We then examined the significance of judicial caution in progressing contact where a fact-finding hearing is pending. The Court of Appeal in E, F And G (Interim Child Arrangements) [2024] EWCA Civ 874 made clear that relaxing contact arrangements in the face of unresolved allegations contradicts Practice Direction 12J. Judges must not prematurely ‘test out’ unsupervised contact prior to a fact-finding hearing as it creates an unmanageable risk.
In T & O, Re (Appeal: Fair Hearings: Delegation of Judicial Functions) [2024] EWHC 2236 (Fam), Henke J disapproved of delegating decisions to an independent social worker as to how unsupervised contact was to progress without there being a proper opportunity for the other party to amount a challenge to the same. The court held that discretion as to how contact progresses must remain a judicial function. Similarly, in M (Children: Contact in Prison) [2024] EWCA Civ 1104, Peter Jackson LJ criticised a High Court decision that permitted prison visits and contact without there being a robust welfare analysis, consideration of Practice Direction 12J, and the court not hearing evidence from Cafcass who did not support such visits.
We then turned to the emerging framework to understand why children resist or refuse contact. We discussed the AAA–AJR–AV–PB–RRR model: Attachment, Affinity, Alignment; Appropriate Justified Rejection; Alienating Behaviours; Protective Behaviours; and Reluctance, Resistance, or Refusal. These categories assist courts in identifying the reasons behind contact breakdowns and in avoiding default findings of alienation. It was noted that proving alienation requires clear evidence of the child’s resistance, that the resistance is not justified by the conduct of the contact-seeking parent, and that the other parent has engaged in direct or indirect manipulation. These are hard to prove and rare.
The discussion moved on to the importance of third-party evidence: communications between parties, school records, medical notes, and professional interactions all form part of the evidential picture. Wishes and feelings reports must be treated with caution, particularly where there may be influence or pressure on the child.
We also addressed shared care orders, focusing on the case of AZ and BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam). Poole J confirmed that when the court is asked to determine whether to make a live with or spend time with order, it is not merely a question of labelling and rather, it is relevant welfare consideration; for example, a live with order would provide a father with parental responsibility. Poole J confirmed that that the key welfare advantages of making joint live with orders were 1) it prevents one parent believing they are more important than the other parent and controlling the arrangements, 2) it puts both parents on an equal footing as to holidays abroad, 3) it signals to both parents the equal value each have in the child’s life, 4) and signals to the child that each parent has the same inherent importance.
Finally, we discussed the use and limits of Section 37 of the Children Act 1989. In Re E (Section 37 Direction) [2025] EWCA Civ 470, the Court of Appeal held that Section 37 directions can only be made in relation to subject children, i.e., those already part of or directly related to the current proceedings. There is no power of the court to direct a Section 37 investigation into non-subject children.
In summary, the day’s discussion emphasised proportionality, evidence-based decision-making, and clarity of purpose in family proceedings. Whether discussing fact-finding, alienation, contact, shared care, or Section 37 orders, the golden thread remains the welfare of the child.
