C (Children)

In child-contact proceedings involving allegations of domestic violence, a fact-finding hearing is not automatic. The judge has a broad case-management discretion and must decide whether investigating the alleged history would assist the decision about future contact. A hearing may be refused where it would be unnecessary or unhelpful, provided adequate reasons are given. Relevant considerations include criminal convictions, the recency and significance of allegations, risk to the child, progress of contact, safeguards, previous courses and the judicial and public resources required. Case management remains a judicial function; a CAFCASS recommendation cannot determine whether a hearing should occur. Referral to a domestic violence intervention programme may be possible on the basis of criminal convictions without further family-court fact-finding.

The father sought contact with Raphael Miguel following a history of domestic violence towards the mother. The father had been convicted of criminal offences, contact had begun at a contact centre and was progressing, and the father had completed an anger-management course. The mother sought a fact-finding hearing concerning ten historic allegations. HHJ Copley refused that application on 8 December 2008 and again on 3 June 2009. Earlier permission applications were refused or upheld, although a CAFCASS report suggested that contact could not progress without risk assessment. The central issue was whether the judge had been required to direct a fact-finding hearing before contact could progress.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed. Lord Justice Maurice Kay agreed entirely with Lord Justice Thorpe’s judgment.
2. Nature of the discretion. The obligation concerning fact-finding hearings in domestic-violence contact cases originated in the conjoined appeals in Re L, V, M and H (Contact: Domestic Violence) [2000] 2 FLR 334. Subsequent presidential practice guidance, including its 2009 amendment, made clear that the decision remained discretionary. A judge refusing a hearing must sufficiently explain the decision.
3. Relevant considerations. The discretion is broad and must be exercised with robust, pragmatic common sense. The judge was entitled to consider that the prior violence had already been established through criminal convictions and punishment; there had been no significant fresh allegations since April 2006; there was no suggestion of violence to the child; contact was established and progressing; the father had given an undertaking against violence and harassment; and he had completed an anger-management course. Those matters were to be weighed against the likely value of investigating historic allegations and the resource consequences of an unnecessary hearing.
4. Intervention programme and CAFCASS. A domestic violence intervention programme could be accessed on the foundation of the criminal convictions alone. Its duration, intensity and cost were relevant to the overall case-management assessment. The management of current cases was for the judge, not the CAFCASS officer, and the officer’s view that fact-finding was necessary did not remove the judge’s discretion.
5. HHJ Copley had exercised the discretion within its proper ambit and was, in Lord Justice Thorpe’s independent view, right to refuse the requested hearing.

1. Court of Appeal (Civil Division): Permission to appeal granted and appeal dismissed. [2009] EWCA Civ 994.
2. Court of Appeal (Civil Division): An earlier permission application was refused on paper by Wilson LJ; Holman J later upheld that refusal. A renewed application was directed to an oral hearing.
3. Willesden County Court: HHJ Copley refused a fact-finding hearing on 8 December 2008 and again on 3 June 2009.