Fathers United. Rights Respected. Every Dad Matters.
When you are involved in private children proceedings, the court must decide the issues fairly. That means more than being allowed into the hearing. It means knowing what allegations, findings and decisions you must answer before the court reaches conclusions that may affect your relationship with your child.
A recent High Court authority, Re A Mother (Appeal: Alienating Behaviours: Fair Procedure) [2026] EWHC 783 (Fam), underlines a vital point:
A serious finding about alienating behaviour should not be made against a parent unless that parent had clear notice that the issue was being considered and a fair opportunity to respond.
The ruling is important for fathers because labels such as “alienation” can influence how the court views contact, communication and parenting capacity. But a label is not evidence. An impression is not a finding. And a disputed allegation cannot simply become fact because it appears in a report.
This is about fair procedure, clear evidence and equal participation.
What does “fair notice” mean?
Fair notice means you should understand:
- What allegations are being made against you.
- What specific behaviour is said to support those allegations.
- What findings the court may be asked to make.
- What evidence is relied upon.
- What decisions may follow if the allegations are proved.
You cannot properly answer a case you have not been told you have to meet.
In practical terms, fair notice usually comes through documents such as:
- The application and response.
- A C1A or other schedule of allegations.
- Position statements.
- Case summaries.
- Directions orders.
- A list of issues.
- A Cafcass safeguarding letter or section 7 report, where relevant.
A general complaint that communication is difficult is not automatically the same as a pleaded case of alienating behaviour. A child being reluctant to spend time with a parent is not, without more, proof that the other parent has caused that reluctance.
The court must identify the real issue and give each parent a fair opportunity to address it.
What happened in Re A Mother?
The important legal point from Re A Mother is procedural rather than personal.
The High Court set aside an alienating-behaviour finding because the parent concerned had not been put on notice that the court was considering making that finding. The parent therefore did not have a fair opportunity to prepare evidence, answer the allegation or make submissions on the issue.
The court treated that failure as a breach of Article 6 of the European Convention on Human Rights, which protects the right to a fair hearing.
This does not mean that alienating behaviour can never be found. It means that the process must be fair before the finding is made.
The court must not effectively say:
“We have decided that this was an issue all along, even though you were not told.”
That is the type of procedural ambush Article 6 is designed to prevent.
Why might a father not realise alienating behaviour is in issue?
A father may be facing this issue without seeing the words “alienation” or “alienating behaviour” clearly set out in the paperwork.
For example, the documents might refer generally to:
- Contact not taking place.
- A child refusing or resisting time with a parent.
- Negative comments about the other parent.
- Communication difficulties.
- Allegations being repeated to professionals.
- A parent allegedly undermining arrangements.
Some of those matters may be relevant to alienating behaviour. But relevance is not the same as a finding. The court should identify the case being advanced and allow the parent to respond to it.
A father may reasonably prepare his evidence around contact proposals, school involvement and practical arrangements. If the court then moves unexpectedly towards a serious finding that he has influenced or harmed the child’s relationship with the other parent, he may not have addressed the issue in the right way.
That is why fair notice must come early.
The Article 6 argument in plain English
An Article 6 argument may arise where:
- A serious finding is made.
- The issue was not clearly identified beforehand.
- The parent did not know the finding was being considered.
- The parent was denied a proper opportunity to answer it.
- The procedural failure may have affected the outcome.
The focus is not simply whether the judge reached a conclusion you dislike. Appeals are not a second opportunity to re-argue every case.
The focus is whether the process was seriously unfair.
A fair-notice argument is strongest when it is raised promptly. If you believe the court is moving towards a finding that has not been properly identified, say so before judgment if possible. Ask for clarification. Request directions. Ask whether the issue is to be determined and what evidence is required.
Do not wait until after judgment if the problem can be addressed earlier.
Cafcass: risk assessment is not fact-finding
Cafcass has an important role. A Cafcass officer may:
- Speak with parents and, where appropriate, children.
- Carry out safeguarding checks.
- Assess potential risks.
- Consider welfare issues.
- Make recommendations.
- Advise the court about arrangements.
But Cafcass does not replace the court.
This distinction was reinforced by Re D (Change of Circumstances: Domestic Abuse Allegations) [2026] EWCA Civ 969. The Court of Appeal confirmed that a Cafcass officer’s impression or assessment is not a judicial finding of fact.
| Question | Cafcass can do | Cafcass cannot do |
|---|---|---|
| Safeguarding | Identify concerns and assess potential risk | Finally determine disputed allegations |
| Welfare | Provide professional advice and recommendations | Make the court’s decision for the judge |
| Evidence | Report what people say and explain professional impressions | Turn an untested allegation into an established fact |
| Fact-finding | Alert the court that disputed facts may be important | Decide that disputed facts are proved |
| Contact | Recommend arrangements based on welfare and risk information | Make a binding child arrangements order |
This matters because a report may describe one account as more convincing, or express concern about a parent’s influence. That may be relevant evidence. It is not automatically proof.
Where disputed allegations become central to the welfare decision, the court may need to reconsider whether a fact-finding hearing is necessary. The court must not simply adopt an assessment as though it were a judicial determination.
Practice Direction 12J: the procedural framework
Practice Direction 12J applies in child arrangements proceedings where domestic abuse is alleged, admitted or otherwise relevant.
It requires the court to address issues at an early stage and to consider:
- The factual and welfare issues.
- Whether disputed allegations require a fact-finding hearing.
- Whether allegations are relevant and proportionate to determine.
- Whether special arrangements or participation directions are needed.
- Whether interim arrangements create an unmanageable risk.
- How findings should affect later welfare decisions.
PD12J also provides for schedules or tables identifying the allegations, the response and the issues to be tried. This is closely connected to fair notice.
A clear schedule helps everyone understand:
- What is alleged.
- When it allegedly happened.
- What evidence supports it.
- What the other parent says in response.
- Why the allegation matters to the child arrangements decision.
The process should be structured, not improvised.
A practical fair-notice timeline
| Stage | What should happen |
|---|---|
| Before the first hearing | Allegations and safeguarding concerns should be identified as clearly as possible. |
| First hearing or FHDRA | The court should identify the factual and welfare issues and record them in directions. |
| Case management | The court should decide whether fact-finding is necessary and what evidence is required. |
| Evidence stage | Each parent should have a fair opportunity to answer the allegations and address the relevant issues. |
| Before the final hearing | The issues, findings sought and evidence should be clear. No parent should face an unexpected serious finding. |
| Judgment | Findings should be based on evidence properly considered by the court, with reasons. |
Practical steps for fathers
1. Read every position statement carefully
Look for words describing alleged influence, undermining, manipulation, coaching or obstruction. Do not assume that an allegation must use a particular legal label to matter.
2. Check for a schedule of allegations
If there is no clear schedule, ask whether one is required. You should know which events and behaviours you are expected to answer.
3. Ask for an issues list
A short, agreed or court-approved list of issues can prevent confusion. It should identify the findings sought and the decisions those findings may affect.
4. Make sure your evidence answers the actual case
Evidence about your parenting fitness is important, but it may not answer a specific allegation about communication or influence. Address the issues directly and calmly.
5. Separate fact from opinion
If a report contains an opinion or impression, identify it as such. Ask what evidence supports it and whether the court is being invited to make a formal finding.
6. Raise unfairness early
A respectful position might be:
“I respectfully seek clarification as to whether alienating behaviour is a live issue and, if so, the specific findings sought and directions for responding to them.”
Do not wait until the judgment if you can raise the issue at the next hearing.
7. Keep the focus on your child
A strong procedural argument should still be child-focused. Explain why clarity, accurate findings and a fair process are necessary for safe and workable arrangements.
What if judgment has already been given?
If a serious finding was made without fair notice, obtain urgent advice about the available options. These may include an appeal, an application concerning the order or another procedural remedy, depending on the circumstances and deadlines.
Do not assume that every adverse finding is automatically appealable. The question will usually include whether there was a serious procedural irregularity and whether the decision was unjust or wrong.
Keep the paperwork:
- The sealed order.
- The judgment or reasons.
- Position statements.
- Schedules and directions.
- Cafcass reports.
- Any transcript or recording available through the proper process.
Fair procedure strengthens children’s cases
Fair notice is not a technical loophole. It protects the reliability of decisions affecting children and parents.
Fathers should not be afraid to ask what case they must meet. Mothers and other parties should have the same protection. The court’s responsibility is to identify the issues, test the evidence and make its own findings.
That is how confidence is built. That is how risk is assessed responsibly. That is how children’s welfare remains at the centre.
Join us in championing fair procedure, equal participation and evidence-led family justice.
For further preparation guidance, see our resources on representing yourself in a UK family court, understanding family court hearings and building evidence of your parenting fitness.
Important: This is advocacy and educational content produced by Fathers Rights. It is not legal advice and does not create a solicitor-client relationship. It is written for proceedings in England and Wales. Scotland and Northern Ireland have different legal systems and arrangements. If you are facing a live hearing, an adverse finding or an appeal deadline, seek advice from a suitably qualified family-law professional urgently.
Fathers United. Rights Respected. Every Dad Matters.