The importance of safeguarding checks and interim contact

Private Law (Child Arrangements Programme (CAP))

05 September 2017

This article highlights the problems that can arise when appropriate Cafcass safeguarding checks have not been carried out and the court decides, acting upon erroneous advice from a very senior court legal adviser, to make an order for interim contact of its motion.

The mother, who was initially legally aided but later became a DPA client, had made an application for a non molestation order against the respondent father, her estranged husband, who was acting in person.There had been an initial hearing and the matter had been listed for a contested hearing in respect of the non molestation application and I was then instructed on behalf of the mother.

The mother had also made a separate Children Act application seeking a Child Arrangements Order and a Prohibited Steps Order in the hope that this application would be issued and listed on the same day as the non molestation order. This was not done and the hearing proceeded on the basis only of the contested non molestation order application. The father said that he was only interested in having contact with his daughter and was prepared to give an Undertaking which he did.

Unfortunately, notwithstanding that the father had made no application and the mother’s application for a Child Arrangements Order had not been issued, the court, having dealt with the non molestation application, then proceeded to treat the hearing as a First Hearing Dispute Resolution Appointment. After hearing submissions only but without hearing any evidence and without waiting for Cafcass to carry out any safeguarding checks, the court made an interim order for supervised contact between the child and the father which was strenuously opposed on behalf of the mother. The court was told that the mother objected to any form of contact and that any order for interim contact would not be complied with and would be appealed.

The background to the case is that the parties were married and had one daughter who was then aged 15 months. The mother had told the father to leave the matrimonial home when the child was about 10 months old and the father had not had any contact since.

The mother had applied for a non molestation order for a number of reasons including physical abuse prior and during the marriage, emotional and mental abuse, manipulation and control during the marriage and harassment since the parties had separated. The appellant mother had filed a statement detailing her concerns. The respondent father had been directed to file a statement in reply but had not done so.

The mother had applied for a Child Arrangements Order and a Prohibited Steps Order because of confessions/admissions father had made and confirmed in writing to being addicted to pornography and to having very serious inappropriate sexual thoughts about their very young infant daughter, which included thoughts and desires to have penetrative, oral and anal sex with her.

At an initial hearing the court had been shown an undated letter from the Kent Police marked “To whom it may concern” and a copy of an undated typed letter by the father, which he confirmed he had written as form of “confession” and that the contents were true. He maintained that his inappropriate sexual thoughts were now in the past, albeit only a matter of months, that he was not a risk to his daughter as he had not acted on his thoughts and that he had sought help and was now much better.

The court was informed in very clear terms that the mother was opposed to any form of contact until such time as her application had been issued, that Cafcass had had an opportunity to carry out full and proper safeguarding checks and that the court had also had an opportunity to consider the need for a psychiatric risk assessment of father. The court was urged not to introduce any form of contact even at a contact centre until such checks/assessments had been carried out to avoid starting any contact only to find that such contact may need to be stopped or that it would never be safe to progress beyond a contact centre which would not be in the child’s best interests.

At this hearing the court heard no evidence and dealt with matters on submissions only.

In its initial Decision the court recorded that the mother opposed any contact because of the concerns about the father, his addiction to pornography and his indecent thoughts about his daughter but decided to make an interim child arrangements order “on its own motion” following advice from a very senior and experienced court legal adviser, until the date of the next hearing “whereby X spends time with her father once a week for two hours at a contact centre(details not specified) unless both parties agree on a person who can supervise that contact so that father is never left alone with X.”

It was only when the ambiguity of the above decision was pointed out to the court and the father accepted the need for any contact to be completely supervised that the court amended its decision and ordered that:

“Interim child arrangements to last until the date of the next hearing whereby X spends time with her father once a week for two hours at a supervised contact centre unless both parties can agree on a person who can supervise that contact so that father is never left alone with X. The father to bear the cost of the supervised contact”.

 The decision was immediately appealed on the basis that the Justices were wrong to have made the decision they did to order any form of contact of its own motion without first waiting for mother’s application to be issued and listing for a FHDRA when Cafcass could carry out full and proper safeguarding checks and the court could be invited to consider the need for a full psychiatric risk assessment of the father.

The court proceeded to deal with the matter of its own motion without proper notice to the mother, heard no evidence and dealt with the matter on submissions only.

The court had been told in the clearest of terms that the mother was opposed to any form of contact, did not want to be in the position of having to breach a court order but would not make the child available for any contact with the father. The mother was in an impossible position and had no wish to disobey a court order.

The mother appealed.

Fortunately, the Recorder who dealt with the appeal had little difficulty granting it. Notwithstanding the father’s repeated protestations that he was still being denied his right to see his daughter, the judge shared the concerns expressed on behalf of the mother that the Lay Justices had made such an erroneous decision of its own motion and that they they had been given such inappropriate advice as to make an interim order for contact before any application had been issued or before any safeguarding checks whatsoever had been carried out.

The appeal judge dealt firstly with the appeal and then, by agreement, treated the hearing as the FHDRA (as by this time mother’s application for a CAO had been issued).

With regard to the appeal, after hearing submissions, the judge gave a short judgement in which he was clearly critical of how the Justices had dealt with the matter and said he had “no hesitation in allowing the appeal and quashing the Justices Order” commenting that the Justices had been wrong to treat the earlier hearing as a FHDRA because:-

  • No application had been issued
  • No gatekeeping had taken place
  • No Cafcass safeguarding checks had been carried out

The judge further said that these errors alone justified granting the appeal but went on to say that on the merits of the case, even if the Justices had been entitled to proceed, they had not had proper regard to the welfare checklist.

The judge said that on a plain reading of the Justices Facts and Reasons (which consisted of about five/six short paragraphs) they had paid insufficient attention to the risks presented by the father regarding his sexual fantasies and had not recognised the need to proceed with caution.

Having dealt with the appeal the Judge then dealt with matters as a FHDRA but was equally clear, despite father’s protestations, that he would not consider making any decision regarding interim contact and adjourned the matter for a further FHDRA before a District Judge to consider any Pt 25 application for a risk assessment of father and for consideration of the need for the appointment of a R16.4 Children’s Guardian, both of which were subsequently granted.

The conclusion of the matter was that, following a two day contested hearing before a District Judge, with expert evidence regarding the risk posed by the father and evidence from the R16.4 Children’s Guardian, an order was made for the father to have some limited contact to be supervised by paternal family members.

Unfortunately, by this stage the mother was no longer legally aided with regard to the CAO application, based upon her means and, after several interim hearings when I was instructed as DPA Counsel, could not afford to instruct me for the final hearing, although I was able to continue to offer her advice and assistance.

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