The gap between facts and norms: contact, harm and futility

This article presents the findings of a case file review of applications for child arrangement orders which were flagged as containing a risk of harm, and to which Practice Direction 12J was applicable. It begins by examining the development of the present version of the Practice Direction and the obligations it places on courts to engage in risk management so as to ensure that any contact between a child and parent accused of harmful behaviour is safe. It then proceeds to outline the means by which the case file review was conducted, and discusses the outcomes of the 102 cases examined across three courts. It then moves to assess how fact-finding hearings are used, examining the circumstances in which they were ordered, circumstances in which holding such a hearing was rejected by the courts, and means by which they were avoided. It also highlights the interaction between fact-findings and other investigative tools at the courts’ disposal such as welfare reports. It concludes by framing the results within the context of increasing pessimism caused by recent judicial statements about fact-findings and the impact of harm allegations on contact.