M (Children)

In reviewing an interim child-contact direction, the court will assess the challenge against the actual hearing as shown by the transcript, rather than an inaccurate paper summary. Where the transcript shows that the judge identified the need for a prompt trial of abuse allegations, made limited supervised contact directions for assessment, preserved a welfare officer’s power to stop contact, and gave the parties a proper opportunity to object, the challenge may be dismissed as unsustainable. A possible risk that contact might affect evidence, together with the desirability of continuity of judicial handling and earlier investigation, were additional observations rather than grounds determining the result.

The mother challenged paragraph 6 of an order made by Chester County Court on 1 February 2001. The order provided for three periods of supervised observed contact between the father and the five children before a fuller hearing on 9 April, with the welfare officer empowered to curtail or cancel contact in the children’s interests.

The mother argued that the order was premature, risked prejudging allegations of sexual abuse, departed from the welfare officer’s advice, and was insufficiently reasoned. The Court of Appeal considered whether the transcript supported that challenge and whether the interim arrangement should remain in place pending determination of the allegations.

Application dismissed. Lord Justice Thorpe and Lady Justice Hale agreed that the challenge could not succeed.

1. Lord Justice Thorpe. The full transcript showed that the written application materially misrepresented the hearing. The judge had recognised that the allegations of sexual abuse required a fair trial at which the father could answer them, and had promptly arranged a hearing before a judge experienced in public law work. The interim issue had then been considered separately.
2. The proposed contact was limited to three supervised meetings and was intended to assist assessment before the substantive hearing. The welfare officer retained discretion to curtail or cancel contact for the protection of any child. Counsel for the mother had been involved in the development of the proposal, had a full opportunity to object, and had effectively accepted the position adopted. The application was therefore hopeless and was dismissed.
3. Lady Justice Hale. She recognised that renewed contact before a trial of sexual-abuse allegations might create a risk to the children’s evidence. She criticised the lower judge’s view that truthful allegations were likely to be maintained, observing that allegations may be withdrawn under pressure. That concern had not been pursued by experienced counsel or the recalled social worker. The safeguards enabling contact to be stopped if improper pressure emerged were material.
4. Lady Justice Hale’s observations that cases should, where possible, remain with the same judge, and that the allegations should have been investigated earlier, were additional observations. They did not alter the dismissal of the application.

The formal order was application dismissed, with legal aid assessment.

1. Court of Appeal (Civil Division): in [2001] EWCA Civ 480, the application for permission, with appeal to follow if permission were granted, was dismissed.
2. Chester County Court: on 1 February 2001, made an interim order for three periods of supervised observed contact between the father and the five children, pending a fuller hearing.