D (A Child)

In child contact proceedings, delay is itself a welfare issue. The court must have regard to the likelihood that delay will prejudice the child’s welfare and must ensure a fair hearing within a reasonable time under article 6 of the European Convention on Human Rights. A split trial of factual allegations and welfare issues may be appropriate, but only where the factual hearing is listed without undue delay and interim arrangements protect the possibility of maintaining or restoring the child’s relationship with the absent parent. Case management must also address the likely strength and significance of disputed allegations, the prospects of supervised contact, and the need for timely welfare evidence.

The father appealed against interlocutory orders in proceedings concerning contact with his six-and-a-half-year-old daughter. The Warrington County Court had adjourned the trial of disputed allegations, first because a Child and Family Reporter’s report was unavailable and later because the mother was medically unable to attend. The adjournments left the factual hearing delayed until June 2002, with no effective interim contact and incomplete welfare enquiries. The appeal concerned whether the case had been managed consistently with the child’s welfare and the parties’ right to a timely and fair determination.

1. Appeal allowed. The Court of Appeal held that the proceedings had been allowed to continue for an unacceptable period. Section 1(2) of the Children Act 1989 requires the court to have regard to the general principle that delay is likely to prejudice the child’s welfare. Article 6 of the European Convention on Human Rights reinforces the entitlement to a fair hearing within a reasonable time. In children cases, delay must not itself become determinative.
2. A split trial of factual and welfare issues can be appropriate, particularly where allegations bear directly on whether contact is in the child’s interests. It is acceptable only if the factual hearing is not unduly delayed and suitable interim contact is arranged to preserve the possibility of restoring the relationship. Those safeguards were absent here.
3. When deciding whether to adjourn disputed factual issues, the court should consider the apparent strength of the evidence, the seriousness of the alleged conduct as an obstacle to supervised contact, and the available disclosure and welfare information. The judges below had not given sufficient consideration to those matters or adopted sufficiently proactive case management.
4. The case was transferred to the High Court for urgent listing before Hedley J. CAFCASS was directed to investigate the welfare issues immediately, including whether expert evidence was required and whether the Child and Family Reporter should consult CAFCASS Legal. The indirect-contact order was varied by attaching a penal notice. The disclosure order was varied to require two further items, and the welfare report was to include a chronology of the mother’s contacts with social services.
5. The costs order relating to the February hearing was set aside and the mother was ordered to pay the father’s costs of that hearing, subject to the usual conditions. Simon Brown LJ agreed with Hale LJ’s judgment and orders.

• Court of Appeal (Civil Division): The father appealed interlocutory orders made by the Warrington County Court. The Court of Appeal allowed the appeal, transferred the case to the High Court for urgent listing, and varied the directions, interim-contact and costs orders.
• Warrington County Court: His Honour Judge Farmer and His Honour Judge Hughes adjourned the factual and contact proceedings, made interim indirect-contact and disclosure directions, and fixed the final hearing for June 2002.