H (A Minor)

When determining contact arrangements, a court assessing the risk of abduction or other harm must base that assessment on findings of fact. Where a fact-sensitive issue is critical to the exercise of discretion, the judge ordinarily has a duty to investigate it and make the necessary findings. A judge may decline to investigate an issue where the likely distress outweighs the probable evidential value, but that qualification does not apply where the issue is central to the decision. The welfare checklist need not be recited if the judgment shows that the relevant factors were considered. In exceptional circumstances, and with the parties’ consent, a family assistance order may be made to support parents and child while contact arrangements develop.

The father appealed against an order of His Honour Judge Curran in the Cardiff County Court dated 25 July 1997. The order maintained direct contact between the father and his seven-year-old daughter at a contact centre, together with indirect contact. The father sought contact at the former matrimonial home for the same two-hour period each Saturday.

The mother opposed the application because she genuinely feared that the father would abduct the child to Tunisia. The county court judge treated the central question as whether the mother had a genuine fear of abduction, rather than whether there was a substantial risk that the father would abduct the child. He made no findings about an alleged threat made by the father during an earlier dispute. The appeal concerned the proper assessment of abduction risk and the failure to determine the disputed facts.

1. Appeal dismissed. The order maintaining contact at the contact centre was left in place, although the Court of Appeal disagreed with the county court judge’s reasoning. A family assistance order was made, by consent, naming the father, mother and child and directing Cardiff City Council to provide assistance for six months. There was no order for costs.
2. Per Mr Justice Wall, the critical issue was whether there was a substantial risk that the father would abduct the child. That risk could only be assessed after findings of fact, particularly as to what happened during the January 1996 incident and whether the father had threatened that the mother would never see the child again.
3. The court applied the approach in Re M and R (Minors) (Sexual Abuse: Expert Evidence) [1996] 4 All ER 239, which had applied the principles in Re H and ors (minors) Sexual Abuse: Standard of Proof [1996] AC 563. Risk assessment under Children Act 1989, s 1(3)(e), must be based on findings made on the balance of probabilities.
4. Where a critical issue is left unresolved, the failure to make the necessary findings vitiates the exercise of discretion. The Court of Appeal could not safely substitute its own view because it had not heard the witnesses. A rehearing was possible, but the exceptional stress caused by further litigation made a supportive intervention preferable.
5. The family assistance order under s 16 of the Children Act 1989 was appropriate because the circumstances were exceptional, the parties consented, and the child lived within the local authority’s area. The order was intended to reduce anxiety and assist the family towards a future application for variation of contact.

• Court of Appeal (Civil Division): Appeal from the Cardiff County Court was dismissed. The contact-centre order remained in force, with a six-month family assistance order added.
• Cardiff County Court: On 25 July 1997, His Honour Judge Curran maintained direct contact at the 4C’s Contact Centre and indirect contact by cards, letters and presents.