A recent case came before the Court of Appeal concerning the whether a judge was wrong to make a final order in private children’s proceedings at a Dispute Resolution Appointment (“DRA”) rather than at a final hearing: Re A, B & C (Child Arrangements: Final Order at DRA) [2025] EWCA Civ 55 CA
The facts of the case are that the parents of three young children divorced, and the mother wanted to return to Ireland, her home country. The father filed an application for a child arrangements order for him to be the principal carer, and an application for a prohibited steps order to prevent the mother form removing the children from the jurisdiction of England and Wales. The mother cross-applied for permission to relocate with the children to Ireland.
An independent social worker (“ISW”) was directed to prepare a report under section 7 of the Children Act 1989, and having interviewed the children, the ISW recommended the mother be refused permission to relocate with the children to Ireland, and that there should be a child arrangements order under which the children’s time would be divided equally between the parents (“shared care”).
A contested final hearing took place before a Deputy District Judge, at which, the mother withdrew her relocation application.
Nine months later the mother and the father each filed a further application seeking to vary the child arrangements order. The mother also issued a second application for permission to relocate with the children to Ireland.
Throughout the period of the Children Act proceedings, the parties were also engaged in contested financial remedy proceedings.
A three day hearing took place. The mother’s case was that the children were not flourishing under the current shared care arrangements, that young children should have one fixed home which in this case should be with her, that the father relied on nannies because of the demands of his work, and that this complicated matters for the children. At the end of the hearing the judge dismissed the mother’s relocation application and maintained the existing “5:2:2:5” shared child arrangements order, with minor variations.
Some months later the mother filed a further application to vary the child arrangements order. In response, the father filed an application for an order under s.91(14) to prevent the mother making further applications without the court’s leave. The parties were directed to file witness statements, and the matter was listed for a Dispute Resolution Appointment (“DRA”). At the conclusion of the DRA the judge made an order dismissing the mother’s application to vary the child arrangements order and made an order under s.91(14) prohibiting the mother from making any applications for child arrangements orders or any other orders under s.8 of the Children Act or variation in the existing orders and any applications under s.13 of the Act without the leave of the court for three years. The mother appealed the judge’s order.
At the appeal hearing, the judge dismissed the mother’s appeal. The mother appealed this decision to the Court of Appeal challenging the summary determination of issues at an early stage of proceedings with limited evidence. The mother also argued that the circumstances of the case had changed, and that a further report was needed into the children’s wishes and feelings.
The principal issue was whether a judge was wrong to make a final order in private children’s proceedings at a DRA hearing. The Court of Appeal dismissed the mother’s appeal. The lead decision given by Lord Justice Baker is summarised as follows:
It is well recognised that litigation about children following the breakdown of their parents’ relationship often exacerbates the harm they have suffered as a result of that breakdown. Strenuous efforts are devoted to encouraging parents to resolve such disputes without resorting to the court. These efforts continue after proceedings have started. A crucial stage is the DRA. The purpose of a DRA is to try to resolve the issues without a contested final hearing. Within the Family Procedure Rules, Practice Direction 12B, paragraph 19(3) requires the court at the DRA to “identify the key issues (if any) to be determined and the extent to which those issues can be resolved or narrowed at the DRA” and to “consider whether the DRA can be used as a final hearing”.
Even where the parties are unable to reach an agreement, the court has the power to bring the proceedings to an end if satisfied that such a course is consistent with the welfare of the children, which under s.1 of the 1989 Act is the paramount consideration whenever the court is determining any question about the children’s upbringing.
Baker LJ relied on a decision in an earlier case which said the court is not obliged to hold a fact-finding hearing just because one party is asking for one, and said the court should only hold a fact-finding hearing where findings are necessary before making decisions about the children’s future.
Where parties have been in proceedings for several years, it is incumbent on any judge to look carefully at the necessity of permitting a party to reopen matters which have been extensively litigated, particularly where the court is concerned about the detrimental effect of the litigation on the children.
Baker LJ went on to say that the order under appeal was not a summary dismissal of the mother’s application without consideration of the evidence. Although there was no oral evidence, there was extensive written evidence in the form of the parties witness statements and the ISW’s report.
Baker LJ concluded that there was no merit in the mother’s ground of appeal concerning the children’s wishes and feelings. The judge was entitled to conclude that there had been no material change after two previous investigations in the preceding four years, and thus no solid ground for embarking on a further investigation, there was no welfare issue on which the children’s wishes and feelings needed to be canvassed
Baker LJ said investigations under s7 are intrusive into children’s lives. They are not to be ordered unless necessary to resolve an issue about a child’s welfare. When the court is deciding whether or not there should be a further investigation and a full hearing, the judge has to assess the information put before the court. Pragmatically, that cannot be confined to agreed evidence. When deciding whether it is in the interests of the children to authorise a full court investigation or to conclude the proceedings at the DRA, the court is not obliged to disregard any piece of contested evidence and only take into account matters that are agreed between the parties. That would undermine the court’s powers to control and conduct proceedings in accordance with the paramountcy of the child’s welfare. The judge has to consider the information put before them, recognise that it is not necessarily the complete picture and in some respects contested, and come to a view as to whether a full court investigation is necessary and proportionate.
Of course, there is a limit to the circumstances in which a court can properly and fairly proceed in that way. It will turn on the details of the contested issues and the proposed outcome. At one extreme, for example, where a party is alleging that the other parent has sexually abused the child and that as a result all contact should be supervised, it will be difficult if not impossible for the court to make a final order without making formal findings about the allegations. But where the proposal is for a less radical adjustment of the child arrangements order, it will often be open to the court to reach a conclusion without a fully contested hearing. This is a decision which can largely be left to the skill and experience of the family judge without appellate interference.
Baker LJ ended by saying that it was manifestly within the discretion of the judge to conclude that the order was justified by reason of the mother’s conduct and the need to give the children a break from litigation.
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