H (a child), Re

In a contact application where domestic violence has been proved, the court must assess its seriousness, risks and effects on the child and residential parent, together with the parties’ conduct, motivation and offending parent’s capacity to acknowledge and change. Domestic violence is neither irrelevant nor an automatic bar to contact; the welfare balance remains fact-specific. A judge must accurately use earlier findings, engage with professional evidence and explain any departure from it. A substantive order made at a short review hearing must demonstrate that relevant matters have been addressed. Here the judge confused and minimised the findings, ignored the father’s continuing denial and failed to apply the guidance in Re L [2001] Fam 260. The order was plainly wrong. Appeal allowed and matter remitted for rehearing before a different judge.

The father applied for contact with H after the parents’ separation. Following a fact-finding hearing, HHJ Cockroft found that the father had seriously assaulted the mother, although other allegations were rejected. Reports were obtained from a jointly instructed psychologist and a CAFCASS reporting officer.

At a May 2005 review hearing in proceedings under the Children Act 1989, the judge ordered six supervised one-hour contact sessions, with an interpreter and later review. The mother appealed, alleging inaccurate recollection of the findings, failure to apply the domestic-violence guidance, inadequate treatment of the professional evidence, and improper determination of a final issue at a short review hearing. The central issue was whether the order was a lawful and properly reasoned welfare decision.

Appeal allowed. The order for supervised contact was set aside and the application was remitted for rehearing before a different circuit judge.

1. Findings of fact. Wall LJ held that the judge had confused the March and June incidents, wrongly treated provocation as relating to the serious June assault, converted a speculative allegation about a boyfriend into a fact, and continued to treat the father as remorseful despite his persistent denial. Findings made at an earlier hearing must provide an enduring foundation for later welfare decisions. As Thorpe LJ emphasised, forgetting, confusing or overlooking those findings fatally flaws the exercise of discretion.
2. Domestic violence and contact. Re L [2001] Fam 260 was a seminal authority. There is no automatic bar to contact following proved domestic violence, but the court must conduct a fact-specific welfare balance. It must consider the seriousness of the violence, the risks and effects on the child and residential parent, the parties’ conduct and motivation, and the offending parent’s recognition of wrongdoing and capacity for change. The judge wrongly minimised the assault, put it aside, and failed to consider the father’s continuing attitude and its likely effect on the mother and H. That was inconsistent with Re L, the Sturge/Glaser report and the CASC Guidelines.
3. Professional evidence and short hearings. A judge may reject expert evidence on a sound basis, but must not dismiss a clinical assessment merely because some factual material underlying it was rejected. The judge also had to explain his departure from the consistent and reasoned CAFCASS evidence. A substantive order may be made at a short review appointment only where the judge is sure of the ground and demonstrates that all relevant considerations have been addressed. Those requirements were not met.
4. Rehearing and case management. Given the partial and distorted character of the judgment, the new judge could reinvestigate the facts where appropriate and had to form an independent view of the parties. The Court also criticised the excessive delay, unexplained relisting, lack of continuity and inadequate expert instructions. In domestic-violence contact cases, allegations must be addressed at the earliest opportunity, with appropriate directions under section 11(1) of the Children Act 1989, consideration of interim contact, CAFCASS involvement and any need for separate representation.

• Court of Appeal (Civil Division): Permission was granted on 12 October 2005. The appeal was allowed, the order was set aside, and the application was remitted to the county court for rehearing by a different judge. [2005] EWCA Civ 1404.
• Bradford County Court: On 9 May 2005, HHJ Cockroft ordered six one-hour supervised contact sessions, with an interpreter and a later review, in proceedings under the Children Act 1989.