In children proceedings involving allegations of domestic abuse, one of the first questions the court must decide is whether a fact-finding hearing is necessary. On paper, the answer should be straightforward. Practice Direction 12J (PD12J) says the court must decide this “as early as possible” by weighing up specific factors.
The Reality Behind PD12J
PD12J gives the court a list of factors to consider but applying them in real cases is rarely straightforward. It is highly-fact specific and often difficult to apply in busy family courts. The result has been years of appeals attempting to clarify when fact-finding hearings are actually necessary and how far-reaching they should be. Unfortunately, instead of creating clarity, these appeals have sometimes added to the confusion.
Two Leading Cases, Two Different Directions
Two Court of Appeal decisions illustrate just how tricky this area has become. In Re H-N (2021), the court took a broad approach that has since led to much more extensive fact-finding hearings. When coercive or controlling behaviour is alleged, courts now often examine long lists of allegations stretching back years. While this recognises how abuse can operate as a pattern, it raises concerns about proportionality, delay and fairness.
Then came K v K (2022), which pulled in the opposite direction. This case emphasised that allegations should only be determined if they’re clearly relevant to the specific welfare issues affecting the child. The President’s Guidance reinforced this narrower approach, and we’ve seen courts refusing fact-finding hearings where the connection between allegations and child arrangements isn’t obvious enough.
Where Does ER v NT (2025) Leave Us?
The recent High Court case ER v NT (2025) attempted to bring these strands together but arguably added to the confusion. While it endorsed principles from both Re H-N and K v K, it did not clearly explain which approach should take priority. The result is ongoing uncertainty for parents and practitioners alike.
Why This Matters for Families
When the law isn’t clear about when these hearings are needed and how broad they should be, families can’t properly assess what lies ahead or plan accordingly. One judge might order a limited hearing focused on specific recent incidents. Another might direct a comprehensive examination of the entire relationship history. The outcome for your family can depend on which court you end up in, and which judge hears your case.
Getting the Right Advice Early
Given the potential impact of fact-finding hearings on delay, cost and outcomes for children, early specialist legal advice is essential. If you or someone close to you are involved in children act proceedings, our child law solicitors are here to provide confidential guidance and support throughout the process.
This article is for general information only and should not be relied on as legal advice. For tailored advice, please contact our specialist solicitors.
