A (children), Re

Domestic violence allegations and child contact are often closely connected, but the governing guidance does not require a wholesale historical investigation in every case. The court should consider the allegations and any answer at the earliest opportunity, then decide whether the alleged violence, if proved, is likely to affect contact. A properly made case-management decision limiting the evidence may be upheld where it was not appealed and the later evidence supports it. An appellate court should not interfere with a contact judge’s evaluative discretion absent an error of principle. Interim arrangements remain reviewable. If contact fails, the judge must reconsider whether further evidence is required.

The mother sought permission to appeal against an order made by HHJ Richards in the Chelmsford County Court on 28 September 2006. The order provided for a staged move from supervised to unsupervised fortnightly contact between the father and their two children, followed by a review and possible staying contact.

The mother argued that the hearing was procedurally unfair because the judge refused to investigate historical allegations of domestic violence and did not order a further assessment of the father. Earlier directions had restricted the evidence to post-March 2004 issues. The central issue was whether the judge had been entitled to proceed on that evidential basis and order staged unsupervised contact.

1. Application refused. Lord Justice Wall gave the judgment, with Lord Justice Chadwick agreeing.
2. The hearing had not taken place in a procedural vacuum. A District Judge had previously directed that the parties’ evidence be restricted to post-March 2004 issues relevant to contact and violence. The mother had not appealed that direction. It would have been unfair, particularly to the father, to introduce the excluded historical material indirectly through the local authority file when he had been prevented from filing evidence about it.
3. The domestic violence and contact guidance in Re L required the court to consider the allegations and any answer at the earliest opportunity, and to decide whether the alleged violence, if proved, was likely to affect the contact order. It did not require a wholesale investigation of historical allegations in every case. The earlier decision to limit the evidential inquiry was a proper exercise of discretion.
4. The history of substantial unsupervised and overnight contact, without any identified harm to the children, was relevant to the assessment of the mother’s anxieties and the need for further investigation. The judge had considered the available material, the Section 7 report, the parents’ evidence, the post-2004 incidents and the welfare of the children. He was entitled to order a cautious, staged move towards unsupervised contact and was not required to obtain a further report.
5. The alleged procedural unfairness and Article 6 complaint therefore failed. The decision was an evaluative exercise with which the Court of Appeal could not properly interfere. If contact failed, the judge would have a positive duty at review to reconsider the conduct of the case and whether further evidence was needed. The exclusion of the historical material was not necessarily permanent, although the family was expected to move forward.

1. Court of Appeal (Civil Division): On 31 October 2006, the court refused the mother’s application for permission to appeal.
2. Chelmsford County Court: On 28 September 2006, HHJ Richards ordered staged interim contact, moving from supervised to unsupervised contact, with a review concerning possible staying contact.
3. Chelmsford County Court directions: Earlier directions had restricted the evidence to post-March 2004 issues and provided for supervised contact pending further consideration.