The Court of Appeal’s decision in K v K [2022] EWCA Civ 468 is a seminal ruling that provides essential guidance on the appropriate approach to fact-finding hearings in private family law proceedings. Specifically, the judgment underscores the necessity of ensuring that such hearings are proportionate, relevant, and not a default mechanism in cases involving allegations of domestic abuse. Despite its significance, empirical evidence from practitioners suggests that the principles enunciated in K v K are not being consistently applied on the ground. This article critically examines the reasons for this disconnect, evaluates the implications of continued judicial reluctance to adopt K v K fully, and explores broader systemic issues within the family court framework.
The judgment in K v K builds upon the principles articulated in Re H-N [2021] EWCA Civ 448, reinforcing a measured and proportionate approach to fact-finding hearings. Key elements of the judgment include:
The judgment reiterates that fact-finding hearings should only be convened when necessary and proportionate to the substantive welfare issues in dispute. Courts must critically assess whether the alleged abuse has a direct bearing on the welfare of the child before embarking on a fact-finding exercise. The judgment cautions against the tendency to use fact-finding hearings as a procedural default, particularly when they result in protracted litigation and delay parent-child contact.
The conceptual underpinnings of K v K are firmly rooted in the broader jurisprudence of family law, which prioritises child welfare over procedural formalities. However, the divergence between judicial guidance and practical implementation raises concerns about systemic inertia within the family courts.
Despite the clear directives provided by the Court of Appeal, the reluctance of lower courts to fully embrace K v K can be attributed to several factors, both structural and cultural.
The increased transparency within the family courts, including the recent pilot scheme allowing greater public scrutiny of judicial decision-making, has heightened judicial caution. Judges may perceive that a failure to order fact-finding hearings in cases involving allegations of domestic abuse could expose them to professional and reputational risks. This heightened scrutiny arguably incentivises a risk-averse approach, prioritising procedural safeguards over substantive judicial discretion.
The recent relaxation of reporting restrictions to permit the naming of judges in family law cases has further exacerbated judicial conservatism. The prospect of public criticism or misrepresentation of judicial reasoning has led many judges, particularly those at the junior level, to err on the side of caution, thereby defaulting to fact-finding hearings rather than exercising a more nuanced analysis as required by K v K.
A notable trend in the family courts is the propensity of junior judges to adopt an overly cautious stance when adjudicating cases involving allegations of domestic abuse. This phenomenon is driven by concerns about appellate scrutiny and the broader legal climate, which increasingly demands a rigorous approach to domestic abuse allegations. Instead of considering alternative mechanisms, such as managed contact arrangements, many judges default to fact-finding hearings to avoid the perception that they are minimising the seriousness of abuse claims.
A key challenge in the practical application of K v K is the misconception that not ordering a fact-finding hearing equates to diminishing the importance of domestic abuse allegations. In reality, K v K does not advocate for the dismissal of abuse claims but rather for a structured and proportionate response. Judges must distinguish between cases where a fact-finding hearing is indispensable and those where protective measures—such as indirect or supervised / supported contact, can be implemented without the need for extensive fact-finding.
A final, yet significant, impediment to the full application of K v K lies in the chronic under-resourcing of the family court system. The backlog of cases and the limited availability of judicial time mean that fact-finding hearings contribute to extensive delays, often leaving non-resident parents, primarily fathers, without contact for prolonged periods. This issue is further compounded by a lack of judicial continuity, where different judges handling successive hearings in a case may not fully engage with the proportionality analysis set out in K v K.
The failure to apply K v K rigorously has profound implications for both the integrity of the family justice system and the welfare of children involved in private law disputes. The consequences include:
- Prolonged Parental Separation – Unnecessary fact-finding hearings result in extended periods of no contact between children and non-resident parents, undermining the principle of maintaining parental relationships where safe and appropriate.
- Judicial Overload – The routine ordering of fact-finding hearings exacerbates case backlogs, reducing the efficiency of the family court system and delaying final resolutions.
- Adversarial Intensification – The adversarial nature of fact-finding hearings heightens parental conflict, making long-term co-parenting arrangements more difficult to establish.
The inconsistency to the approach in the application K v K fully reflects broader systemic issues within the family courts. While judicial caution is understandable in the context of increasing scrutiny, it must not come at the expense of child welfare or the efficient administration of justice. To bridge the gap between judicial guidance and practical implementation, the following steps should be considered:
- Enhanced Judicial Training – Greater emphasis on the proportionality principles of K v K in judicial training programmes.
- Stronger Procedural Gatekeeping – Clearer procedural safeguards to prevent the automatic listing of fact-finding hearings unless a robust child welfare analysis justifies their necessity.
- Increased Judicial Confidence – Encouraging a shift away from defensive decision-making towards a principled application of judicial discretion, particularly among junior judges.
- Resource Allocation – Addressing the structural inefficiencies of the family court system to ensure that hearings are managed effectively and proportionately.
Ultimately, the success of K v K as a legal precedent depends on the willingness of the judiciary to apply its principles rigorously. Without a concerted effort to align judicial practice with appellate guidance, the family courts risk perpetuating delays and adversarial litigation at the expense of the very children they are charged with protecting.
Baldip Singh
Christopher McWatters
No5 Chambers