SS v KS

An interim contact order should not ordinarily be made where allegations of domestic violence, if proved, would affect whether contact should occur or what form it should take. Such an order may nevertheless be justified exceptionally where substantial delay would itself prejudice the child, particularly where contact can be strictly supervised and limited. The appellate court should not interfere unless the trial judge was plainly wrong, recognising the breadth of the discretion available in interlocutory family proceedings.

The father sought contact with two children. At a part-heard fact-finding hearing, the District Judge adjourned the matter, permitted further evidence, and ordered supervised contact pending the resumed hearing. The allegations included serious domestic violence, including an allegation that one child had witnessed violence, and the anticipated delay was substantial.

The mother appealed against the interim contact order. The central issue was whether the District Judge had been plainly wrong to balance the risks of interim contact against the adverse effect of delay.

1. Appeal dismissed. The interim order for one hour of fully supervised contact once a fortnight remained in force.
2. The conceptual difficulty with interim contact is that it may assume the very issue requiring determination: whether contact should take place at all. Where allegations of domestic violence, if proved, would be relevant to whether contact should be ordered or to its terms, interim contact should not ordinarily be ordered. The risk of emotional harm to the children or the mother may not be addressed by supervision alone and may require a fact-finding hearing and CAFCASS assessment.
3. The principle stated in RE L,V,M,H (Contact: Domestic Violence) [2002] 2FLR 334 (CA) was relevant: a fact-finding hearing is required where the truth of allegations would have a significant impact on the contact decision.
4. The position is not absolute. Exceptional delay may justify a carefully limited interim order. The District Judge had recognised the competing considerations, addressed physical safety through proper supervised contact, and exercised the discretion available to him. The High Court could not conclude that his decision fell outside the generous breadth of that discretion or was plainly wrong.

• High Court (Family Division): dismissed the mother’s interlocutory appeal against the District Judge’s order of 27 February 2009.
• District Judge, Principal Registry of the Family Division: adjourned a part-heard fact-finding hearing, permitted further evidence, and ordered interim supervised contact.