H-T ( Children)

Interim contact in care proceedings must be decided without prejudging the final fact-finding or rehabilitation issues. Even in exceptionally serious cases, the court must evaluate whether contact can be safely managed, including through supervision, separate attendance, altered frequency or other safeguards. The welfare of each child must be considered individually. A very young child born after the alleged incident may require a different assessment, particularly where there is no risk of retraumatisation. A direction under section 34(4) of the Children Act 1989 requires careful, child-specific evaluation and should be reviewed as the evidence develops.

These conjoined appeals arose from care proceedings concerning four children. The parents appealed against an order of HHJ Newton in the Chelmsford County Court continuing directions under section 34(4) of the Children Act 1989, permitting the local authority to refuse contact.

The proceedings followed serious injuries to one twin baby. The case also involved allegations of domestic violence, which had not yet been determined. The judge continued the restriction for the three older children and imposed a similar restriction for a baby born after the incident. The central issue was whether the judge had lawfully determined interim contact or had prematurely treated the final outcome as effectively decided.

1. Appeals allowed. The section 34(4) directions were discharged and the issue of future interim contact was remitted to HHJ Newton for reconsideration.
2. Interim contact must be determined pending the final hearing. The court must not prejudge the fact-finding hearing, rehabilitation, reunification or the ultimate outcome of the care proceedings. The judge had correctly summarised the governing authorities, including the strong presumption in favour of contact and the need for extraordinarily compelling reasons before an interim section 34(4) order is made.
3. For the three older children, the judge had treated the seriousness of the injuries to their sibling as effectively decisive. He failed to analyse whether contact could be managed safely, including by supervision, separate attendance or changes in frequency. He also failed to weigh the children’s young ages, the emotional benefits and risks of contact, the possibility of managing adverse factors, and the relatively positive accounts of earlier contact. The allegations of domestic violence were unresolved and should not have been conflated with the possible sexual assault on the baby.
4. The baby born after the incident required a separate assessment. She could not be retraumatised by exposure to the alleged earlier event in the same way as the older children, and her very young age made early parental contact particularly important. The reasons given did not justify refusing all contact with her at that stage.
5. The Court of Appeal declined to make detailed contact orders itself. The first-instance court was the proper forum for assessing the expert report and developing medical and forensic evidence. HHJ Newton was not disqualified from continuing the case, and the matter was remitted for review at the listed hearing.

• Court of Appeal (Civil Division): allowed the parents’ appeals against HHJ Newton’s order of 2 July 2012, discharged the section 34(4) directions and remitted the case for reconsideration.
• Chelmsford County Court: continued directions permitting the local authority to refuse contact with the children pending further consideration.