E, F and G (Interim Child Arrangements) [2024] EWCA Civ 874 was a recent appeal brought by the Mother on 2 grounds; the first in respect of a child arrangements order made for unsupervised contact and the second regarding an adjournment due to a Qualified Legal Representative (‘QLR’) not being available for the fact find hearing. This article will focus on the first ground in respect of the child arrangements order. Ronald Edginton has written an article entitled “How long should the court wait to appoint a qualified legal representative?” in respect of the second ground should you wish to read further about that aspect (https://becket-chambers.co.uk/articles/how-long-should-the-court-wait-to-appoint-a-qualified-legal-representative/).
The proceedings concern the parties’ children – E, aged 11, F, aged 10 and G, aged 8. The Father made an application for a child arrangements order, a prohibited steps order to prevent the Mother removing the children from the jurisdiction or their hometown and a specific issue order to allow the Father to take the children on holiday. The Father made a subsequent application for a female genital mutilation protection order.
The Mother opposed the applications and raised allegations of domestic abuse, which included physical abuse of the children and coercive and controlling behaviour towards her during the marriage and post separation. The Father denied the allegations and made cross-allegations against the Mother.
At the FHDRA in October 2022, the Court made various orders, including an order for the Father to have direct supervised contact with the children at a contact centre. A Section 7 report was directed which, when received, included reports of the author speaking with the children and that the children made allegations including that the Father has locked them in their rooms, hit them with items such as coat hangers and shoes and is critical of their clothing. The Father admitted throwing a phone in the presence of the children and damaging a laptop which was recorded in the report, with the Father stating he was undertaking the ‘Managing Strong Emotions’ course.
The recommendations of the report included that there should be a fact find hearing into the cross-allegations as the allegations presented ‘a barrier to safe contact progression’. Cafcass recommended that contact should continue to be supervised in a contact centre.
On 21st July 2023, a fact find hearing was ordered and the contact order varied to allow contact in the community, provided it remained fully supervised. At a hearing on 12th October 2023 an addendum Section 7 report was directed and the contact order varied again for contact to be supported in the contact centre (meaning contact notes and full supervision was not necessary but that a 3rd party should be present throughout to support contact).
The addendum Section 7 report was received in which the Cafcass Officer reported that the children’s wishes and feelings were that they did not want overnight contact with their Father, but they would feel comfortable with unsupervised contact. In their analysis, the Cafcass Officer stated that the extent to which contact is safe and in the children’s best interests to progress in line with their wishes and feelings remained dependent upon the findings made and therefore, no changes were made to the recommendations regarding contact as the fact find hearing had not yet taken place.
The fact find hearing was adjourned to allow the search for the QLR to continue but within that hearing, the Judge heard submissions on interim contact arrangements. The Judge determined that contact no longer needed to be supervised. The Mother appealed that decision. Following that determination, the Cafcass Officer submitted a S16A risk assessment to the Court and made a referral to the Local Authority.
In determining the Mother’s appeal, the Court considered paragraph 4 of Practice Direction 12J:
“Domestic abuse is harmful to children, and/or puts children at risk of harm, including where they are victims of domestic abuse for example by witnessing one of their parents being violent or abusive to the other parent, or living in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.”
And Paragraph 25:
“Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind in particular the definition of “victim of domestic abuse” and the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse).”
A transcript of the hearing was before the Court in which the Judge did not necessarily accept Cafcass’ view that whether unsupervised contact would be safe, and in the children’s best interests, would depend upon the findings and suggested that Cafcass are ‘very risk averse these days’. The Judge, in their judgment, suggested that the ‘testing-out which would have been undertaken following findings, even if they were made in my judgment to the hilt of the mother’s case, has already occurred’. The Judge suggested that the ‘time had come’ to move to unsupervised contact, and that is what the children want and need; and further, that such a move created no unmanageable risk for the children and that there was advantage in the unsupervised time being ‘tested out under the umbrella of existing court proceedings’.
Lord Justice Baker giving judgment on the appeal found that the Judge’s reasoning was inconsistent with Practice Direction 12J both in general and in particular, paragraph 25. The Judge’s observations of time having already been ‘tested-out’ and the advantage of having unsupervised time now to test it under the umbrella of proceedings was mistaken and the notion of testing out time before a fact find hearing is contrary to paragraph 25. Further, it was not clear that there would be any ‘testing-out’ of contact if there were findings on the Mother’s serious allegations and the likelihood would be further assessment of the Father and the completion of work, as recommended.
As the Court had determined a fact find hearing was necessary, it was incontrovertible that the extent to which it is safe and in the children’s best interests for contact to progress in line with their wishes and feelings remained dependent upon whatever findings may be made. If findings were made, there would plainly be an ongoing risk to the Mother and the children and therefore, there would be strong arguments against moving to unsupervised contact. It was found that the Judge’s assertion that the progress of contact created ‘no unmanageable risk’ to the children was unsustainable at that stage with Lord Justice Baker being clear that:
“Unless and until the court has considered the allegations of abuse, the extent of the risk is unknown and thus unmanageable unless contact is supervised.”
In respect of Cafcass, it was said that “Cafcass as an agency treats domestic abuse with appropriate seriousness and this Cafcass officer’s work in this case was entirely consistent with that approach”.
The appeal in respect of child arrangements was allowed and the order providing for the Father to have unsupervised time with the children ahead of the fact find hearing was set aside.
This case highlights the sheer importance of Practice Direction 12J and the need for it to be applied in every hearing where domestic abuse is raised. Until allegations are determined there remains an unknown, and therefore unmanageable, risk that needs to be considered when the Court is determining whether to make an interim child arrangements order. In those circumstances, no such interim order should be made unless the Court is satisfied that to do so is in the interests of the child and that the order would not expose the child or the parent to an unmanageable risk of harm, as per paragraph 25. That is not to say that a fact find hearing or a determination of allegations will be necessary in every case where domestic abuse is raised but in this case, where a fact find hearing had been deemed necessary, a factual matrix needed to be determined before risk could be assessed and managed.
Members of Becket Chambers are available to assist with matters relating to child arrangements; please contact the Clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.
