K & S (Children)

In contact proceedings, allegations of domestic violence or harassment which may affect the outcome must be investigated and determined. They cannot be left as background matters or treated merely as issues of credibility. Proof of domestic violence does not create an automatic bar to contact. The court must instead conduct a welfare evaluation, weighing the seriousness, risks and effect of the violence against any benefits of contact, including the offending parent’s insight and capacity to change.

A serious failure to make necessary findings may nevertheless not justify an unlimited retrial where delay and the children’s welfare make that course inappropriate. The outstanding allegations should then be determined at the earliest suitable opportunity.

The mother sought permission to appeal out of time from Judge Bevington’s order of 19 November 2004 concerning residence and contact arrangements for her three children and their two fathers. She also had sought permission to remove the children permanently to Australia.

Her appeal relied on subsequent criticisms of the CAFCASS reporter’s work and, more importantly, the judge’s failure to determine disputed allegations that one father had been violent and harassing towards the mother and children. Since the order, further professional work and a later order had sought to develop contact. The central issue was whether the failure to make findings required the earlier decision to be set aside and retried.

1. Permission to appeal was granted, but the appeal was dismissed. Thorpe LJ, with whom Rix and Wilson LJJ agreed, held that the trial process had seriously failed to determine a central issue. Nevertheless, the children’s welfare and the consequences of delay did not permit an unlimited retrial.
2. The judge should have applied the guidance in Re L; Re V; Re M; Re H [2000] 2 FLR 334. Where allegations of domestic violence or harassment may affect contact, they must be investigated and adjudicated. The allegations were central to the safety and appropriateness of contact; they were not merely matters bearing on the adults’ credit.
3. Proof of domestic violence would not itself bar contact. It would require a welfare balancing exercise which considers the seriousness of the violence, the risks and impact on the child and resident parent, the benefits of contact, and the alleged perpetrator’s insight and genuine capacity to change.
4. The judge’s heavy reliance on the CAFCASS report and her failure to address the mother’s specific criticisms added to the concern. The later investigation’s criticisms were principally procedural and provisional, but the reporter should have identified the significance of the pending criminal proceedings and the need for clear family-court findings once they ended.
5. The delay in challenging the order, the subsequent professional investment in contact, the weak and diminished relocation case, and the fact that the defect did not affect the conclusions concerning the eldest child made a wholesale retrial contrary to welfare. The court indicated that the unadjudicated allegations of violence and harassment should be investigated at the first opportunity, and would hear further argument on the appropriate mechanism.

• Court of Appeal (Civil Division): Permission to appeal out of time was granted, but the appeal was dismissed: [2005] EWCA Civ 1660.
• Family Division, Principal Registry sitting at Wood Green Crown Court: Judge Bevington made orders on 19 November 2004 broadly supporting and developing the fathers’ relationships with the children. A later order of 23 September 2005 sought to consolidate and expand contact.