Z (Children), Re

Not every allegation made in private-law children proceedings requires a fact-finding hearing. But, where a court has determined that serious allegations require such a hearing, it must not abandon or short-circuit it before ordering unsupervised contact.

The domestic-violence practice direction must be followed. The judge must hear all relevant evidence, permit fair cross-examination, assess the risk to the children, and obtain any necessary CAFCASS assessment before deciding whether contact can safely progress. There is no equivalent of a “no case to answer” ruling in children proceedings. An appellate court may set aside an exercise of discretion that is premature, unfair, illogical, or risks compromising the children’s welfare.

The mother appealed against an order of HHJ Collins QC, made in the Principal Registry of the Family Division on 27 March 2009, for unsupervised contact between the father and the parties’ two youngest children.

Earlier directions had provided for supervised contact and a fact-finding hearing concerning the mother’s allegations of domestic abuse, threats to remove the children to Algeria, and other harmful conduct. The hearing began, but the judge terminated it before hearing the father’s evidence or permitting his cross-examination. He then ordered unsupervised contact notwithstanding the provisional CAFCASS evidence and the unresolved allegations.

The central issue was whether the judge could discontinue the fact-finding process and make that interim contact order without completing a fair assessment of the alleged risks.

1. Permission to appeal was granted and the appeal was allowed. Wall LJ, with whom Wilson LJ agreed, held that the order for unsupervised contact was premature and plainly wrong.

2. The court accepted that not every allegation between parents calls for a fact-finding hearing. Here, however, two earlier judges had directed one, the allegations were serious, and the hearing had already substantially begun. The judge could not logically treat an incident outside court as a reason to terminate, rather than adjourn or complete, the fact-finding process.

3. The domestic-violence Practice Direction, reported at [2008] 2 FLR 103, was to be obeyed. It governed the proper process for deciding residence and contact where domestic abuse was alleged. A judge had to hear all material evidence and decide the facts before concluding that children faced no risk, or otherwise deciding that unsupported contact could safely occur.

4. There was no equivalent of a no-case-to-answer procedure in children proceedings: Re R (A Child), [2008] EWCH Civ. 1619. The mother was denied a fair opportunity to test the father’s evidence, including evidence relevant to alleged abduction risk and the destruction of the children’s passports. The judge also acted prematurely in assessing the need for therapeutic work without completed findings and CAFCASS advice.

5. Although contact decisions ordinarily involve a wide first-instance discretion, that discretion had to be exercised judicially, fairly, and consistently with good practice. Private judge-and-counsel discussions, particularly those giving preliminary indications on disputed allegations, were inappropriate; children cases should be conducted in court and on the record.

6. The father’s application was referred to the Family Division Liaison Judge for Greater London for urgent allocation to a different circuit judge. There was to be a speedy fact-finding hearing, followed by CAFCASS input and an early determination of contact.

• Court of Appeal (Civil Division) — Granted permission and allowed the mother’s appeal in [2009] EWCA Civ 430. It set aside the order for unsupervised contact and directed urgent reallocation to another circuit judge.

• Principal Registry of the Family Division — HHJ Collins QC terminated an incomplete fact-finding hearing and, on 27 March 2009, ordered unsupervised contact between the father and the two younger children.

• Principal Registry of the Family Division — Earlier directions by District Judge White and HHJ Sleeman had required supervised contact and a fact-finding hearing concerning the mother’s allegations.