First Hearing Dispute Resolution Appointments - How do we make them more efficient and effective?
If you do not change direction, you might end up where you are heading.
In private law Children Act proceedings, a First Hearing Dispute Resolution Appointment [‘FHDRA’] is the first check in with a case. It is designed to identify the disputed issues and consider how those issues might be resolved. The effectiveness and efficiency of these hearings is something that is increasingly being called into question.
As you read this article, ask yourself; did the most recent FHDRA you attended properly identify the issues and look at options to resolve the same or did it simply deploy a fairly typical timetable which included one of three outcomes, (i) an adjournment for more evidence, (ii) a section 7 report or (iii) listing for a finding of fact hearing?
In my experience, the effectiveness of a FHDRA varies across the country, but overall, I would say there needs to be a significant shift in how courts engage in private law disputes at this hearing. Private law disputes are regularly involving allegations of domestic abuse and / or allegations of behaviours designed to impact / influence the child not having a relationship with the other parent (sometimes referenced as parental alienation).
A case that contains an allegation of domestic abuse will be captured by PD12J as well as the recently issued Cafcass policy from January 2025.
PD12J – what does it say?
25. Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind in particular the definition of “victim of domestic abuse” and the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse ).
26. In deciding any interim child arrangements question the court should–
(a) take into account the matters set out in section 1(3) of the Children Act 1989 or section 1(4) of the Adoption and Children Act 2002 (‘the welfare check-list’), as appropriate; 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 abuse, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and that 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 minimised 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.
The Policy – what does it say?
27. where risks are identified at any stage of the proceedings, (including Work to First Hearing) consideration must be given to whether it is in the child’s best interests and whether it is safe to continue any ‘direct time with’ arrangements that may already be in place, until the next hearing. Practitioners must also in this instance consider PD12J when undertaking an assessment of whether interim arrangements are safe for the child.
28. As part of this assessment practitioners must provide to the court clear advice or recommendations as to whether any order to spend time with a parent would expose the child or their other parents to any ‘unmanageable risk of harm’ taking into account the specific definition of a ‘victim of domestic abuse’ and the impact any abuse can have on the emotional well-being of the child and the safety of the other parent. Any arrangements must in the child’s best interests.
Issues with the First Hearing Dispute Resolution Appointment
In my view, there are a number of problems with the manner in which a FHDRA currently takes place. Some of these are listed below;
There is usually a significant time lag between the issuing of an application and the FHDRA.
There is usually insufficient time allotted to enable busy courts to do the ‘deep dive’ at this pivotal hearing. It is this hearing where the ‘scene’ will be set in terms of case management decisions and interim arrangements.
Where a case is allocated to the Magistrates court the FHDRA is usually conducted before a legal adviser who has limited powers in determining interim arrangements and by consequence the hearing is not fully effective.
There is usually some influence brought to bear on the interim arrangements by Cafcass (and likely to increase as a result of the recently issued policy) when they have limited information with an inability to properly challenge the opinion / recommendation.
Finding of Fact Hearing
As a result of allegations and PD12J, more often than not the court is having to consider whether a finding of fact hearing is necessary and proportionate in order to resolve the application justly.
Often, at a FHDRA, the court does not have all the information required to properly consider whether a finding of fact hearing is required.
I think too often there is an unspoken assumption that a finding of fact hearing involves a separate hearing. Such an approach is costly both in terms of money and time. Often the resolution of the factual dispute does not significantly alter the trajectory of a case. In my view, it is the delay in getting to that point which becomes the most harmful component and by consequence derails anticipated direction of travel.
The judgment of Mrs Justice Lieven rightly deals with this issue in TRC v NS 2024 EWHC 80 where she said,
In many private law cases with allegations of domestic abuse, where the court is focusing on the relevance of such allegations to the best interests of the children, it is much less clear that separating fact finding from welfare is a helpful way to proceed. The welfare checklist focuses the court in considering the case in a holistic manner. The neat categorisation of truth and untruth and hard binary facts, often sits uneasily with the reality of failed relationships. It may be much more useful for a court to consider the evidence, including that of the FCA, in a holistic way rather than trying to separate facts from welfare.
I am surprised that this has not led to courts better considering the holistic overview to be gained in listing a case for a composite final hearing i.e. determining allegations and assessing welfare at the same hearing.
Assessments
An either / or assessment is the solution to this. This is a common method of assessment in public law cases (and one which creates compatibility with the statutory mandated timetable of 26 weeks) yet is often immediately rejected if suggested within the private law arena.
The Cafcass policy makes it clear that there is an obligation on its Advisors to look at the issue of contact (safety and welfare) at the interim hearing (i.e. FHDRA) as well as at final hearing and that the issue of spending time must be properly assessed. In my view, this is a piece of work far greater than what Cafcass currently undertakes as part of the preparation for the safeguarding letter.
The likelihood will be that Cafcass continue to say a separate finding of fact hearing is required if it considers that there are relevant allegations that need to be resolved i.e. the factual matrix must be established before the court moves on to assess welfare.
That means the risk assessment will take place months down the line and what will have happened in that intervening period in relation to the relationship between the child and that parent? In all probability not a lot because Cafcass will unlikely make any firm proposal for interim contact unless something is already in place.
This raises all sorts of issues and again takes me back to the need for the court to have better information and time at the FHDRA so important interim decisions can then be taken.
It always amazes me that there is a parallel universe outside of private law disputes whereby in public law proceedings there is a start point of the promotion of a relationship between the children and the parent irrespective as to the number / significance and seriousness of the allegations a parent might face. That does not exist in the private law arena and as a result parents have to literally ‘fight’ to spend some time with their children when allegations remain unresolved and try and preserve the relationship by ‘holding the line’ until the court has investigated matters.
The lack of early assessment means that other options are overlooked that might be the solution in preserving the relationships pending further hearing. Often there are family members who can, and are willing to, assist but one parent can veto that. If it is then disputed, the court will often say ‘there isn’t enough information to make that decision’.
Suitability assessments exist in public law proceedings and so why cannot something similar be better and more easily accessed within private law proceedings? Being curious as to interim solutions for children is part of the proportionately aspect of any risk assessment. In addition, as set out above, PD12J obligates the court to consider supervised / supported arrangements and the availability of appropriate facilities for that purpose.
Those families with access to funds can consider making an application for an independent social worker to complete this assessment, but as we know the majority of families do not, ordinarily, have access to funds. Is this a gap that Cafcass will be asked to plug?
Usually conversations, via a third party, can resolve a dispute between parents as to the suitability of a family member assisting with contact. The assistance of a professional in leading this conversation can then result in a ‘contract of expectations’ being designed. This is the set of rules for the family as to how the contact is to be managed in the intervening period. However, for this to be meaningful and effective for the family it requires the assessment, a conversation and then drafting of the rules to be undertaken at the outset of proceedings. One purpose to this approach is to mitigate the negative impact delay in resolving proceedings can have on children. Ergo, if this intervention happens towards the end of the proceedings it will not have met one of the clear objectives.
At the First Hearing Dispute Resolution Appointment – more time needed
An approach of an ‘either / or’ assessment has a number of advantages not least reducing the impact of delay and cost but it also enables the children’s voice (if appropriate) to be heard in a timely manner.
At a FHDRA there is a lost opportunity for the court to understand the issue of risk relevant to the issue of contact and applying the legal criteria as set out in the recent Court of Appeal decisions of Re L-G (Risk Assessment) [2025] EWCA Civ 60 and Re T (Children: Risk Assessment) [2025] EWCA Civ 93.
Maybe more fundamental than that – why not have an interim hearing whereby the parents give evidence and the court teases out what the real issues are? This can be inquisitorial and not adversarial. This has the potential to, in the longer term, reduce the conflict and avoid parents ‘locking in’ for long term battle. The giving of evidence could actually be part of the dispute resolution model so parents feel heard and their position softens a little because of that.
It is often a scary world for parents coming into a FHDRA and that can trigger the ‘fight or flight’ mode. Having a judge that has taken the time to read and listen and make informed interim decisions can very much put a case on a whole different trajectory to that which would have happened with the more conventional approach to these hearings.
Children’s voice – how and when heard?
The Family Justice Council [‘FJC’] in their report from December 2024 identifies that where there are allegations of alienating behaviour (which is often an allegation made in response to allegations of domestic abuse) the children’s voice is an important factor. However, what is not set out is when and how is this captured?
It is apparent that the guidance from both the judiciary and other key stake holder agencies like the FJC make it clear that issues of domestic abuse and alienating behaviours are questions of fact and where there is a dispute between the parties that dispute should be resolved by the court (if relevant). So we end up back in the same situation don’t we? A likely recommendation that there should there be a separate finding of fact hearing. If so, this will result in a section 7 report being directed in several months’ time and therefore that is likely to be the first time, within a long process, where the children’s voice ‘is independently heard’.
An ’either / or’ report would capture the children’s voice in a more timely manner and also allow for consideration as to what the children are told about their absent parent. For many children they will have been living in a two parent household and for that to change, sometimes literally overnight, with no explanation as what that means for them and what will happen next. It is usually the parent who is making the allegations of domestic abuse that has the children in their full time care and therefore it falls to that parent to do this delicate piece of work. An early report will allow for life story work to be completed and for the signposting towards relevant agencies if the children need greater emotional support to make sense of their new world.
Judges
My final issue is that of judicial continuity. I will be transparent with the readers and say that I do not personally believe that Magistrates should be engaged in making these decisions. That is my view. However, I respect that they are part of the Family Justice System and so we must work with what we have. However, I do not see the utility in the FHDRA, at Magistrate court level, being conducted by a legal adviser only given their limited powers. Applications are made because there is a dispute about the arrangements for the subject children and so it follows that those issues will need to be considered at the earliest opportunity yet, the current system deprives families of that if their case is allocated at this tier.
I am a firm believer in judicial continuity. Clearly that is difficult to establish and maintain with three Magistrates and a legal adviser. However, a District Judge can deliver continuity to a family.
Conclusion
So this is my contribution as to how we can work towards making the private law arena better and healthier for families – so we can work towards being SMART – Specific, Measurable, Achievable, Realistic, Timely. This means, in my view, three things need to change:
Better case management directions on allocation – which includes securing all evidence required to determine whether allegations require a finding of fact hearing (separate or composite), an analysis on risk with reference to the interim arrangements including support from wider family members as well as what information is to be shared with the children and by whom;
Allocation to Judge level;
A 3-hour listing at a FHDRA with the ability to hear substantive arguments on:
Which allegations, if any, are relevant?
If there are relevant allegations should they form part of a composite final hearing;
Interim arrangements – to include consideration of family members assisting.
Put another way, private law proceedings need to be managed ‘top heavy’. For too long the system has engaged in culture of ‘kicking the can down the road’ which has significant and harmful consequences for the children. The advent of the Cafcass policy creates an opportunity to change how we do things for the better.
Written by Lisa Edmunds, CEO and Senior Consultant Barrister at Unit Chambers.
Law is correct as of 26th March 2025. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.
If you found this article insightful, you might enjoy Lisa’s debut book, A Practical Guide to Fact-Finding Hearings in Public and Private Law Proceedings in Family Law. In her book, Lisa takes readers on an insightful journey into the craft and methodology of fact-finding hearings in family law. Drawing on her extensive experience, Lisa unpacks the nuanced processes that define the pursuit of truth in cases involving children, shedding light on the critical distinctions between family and criminal courts. Find out more here.
