A (A Child), Re

A positive finding that sexual abuse did not occur does not require unsupervised contact. The court must separately determine arrangements in the child's best interests. Temporary independent supervision may be ordered where contact needs urgent re-establishment, the child's age and allegations call for caution, and the concerned parent's anxiety would otherwise undermine contact. The alleged conduct may not have occurred while the parent continues honestly to believe the child's account. Further investigation may remain under review, but should not displace the immediate priority of a careful reintroduction.

The mother appealed against an order made by His Honour Judge Viljoen after a three-day hearing concerning contact between the child, J, and her father. The mother alleged that the father had sexually abused J. The father denied abuse. The judge made a positive finding that no sexual abuse had occurred, but ordered weekly contact at a contact centre, required the mother to make J available, and directed a report on extending contact to staying contact.

The mother challenged both the finding and the form of the order. The central issue was whether protective, independently observed contact was required despite the finding that abuse had not occurred, particularly while the mother continued to believe J's allegations.

Disposition

The appeal was allowed in part. The finding that no sexual abuse had occurred was upheld, but the contact arrangements were set aside and replaced with an order requiring temporary protective supervision.

1. Finding of no abuse. Lady Justice Hale held that expressing the conclusion as being satisfied that no abuse occurred, rather than not being satisfied that abuse occurred, made no legal difference. Both formulations amounted to a finding that abuse had not occurred. On the evidence before him, the judge was entitled to reach that conclusion. Lord Justice Mance agreed and noted that several complaints relied upon matters not raised in the evidence or notice of appeal.
2. Need for supervised contact. The finding on abuse did not resolve the separate question of how contact should safely and successfully be reintroduced. Supervision was justified because:
   • J had not seen her father for more than a year and renewed contact was urgent;
   • J was very young and had made allegations which required caution in reintroducing contact, regardless of whether they were true; and
   • contact was unlikely to work or be enjoyable unless the mother's anxiety was reduced.
   It was possible for the father not to have behaved improperly while the mother retained a genuine protective belief based on what J had said.
3. Further investigation. Transfer to the High Court, separate representation for J, or involvement of a child psychiatrist could be considered later. Those possibilities did not take priority over supervised contact. A psychiatric investigation could itself be abusive of the child.
4. Revised order. The first two paragraphs of the order below were set aside. The court directed urgent regular contact in a setting providing the protective presence of an independent person able to observe unobtrusively. Both parents were required to co-operate with assessment by the Coram meeting place. Pending that assessment, the CAFCASS officer was to arrange at least one, preferably two, meetings at the CAFCASS offices. The papers were to be sent urgently to CAFCASS Legal for consideration of further steps.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 1595, allowed the appeal in part, upheld the finding that no sexual abuse had occurred, and replaced the contact arrangements with temporary independently supervised contact.
• Family Division county court jurisdiction: His Honour Judge Viljoen made the order dated 8 May 2002 for weekly contact at a contact centre and a report concerning future contact, after finding that no sexual abuse had occurred.