W (Children), Re

Where domestic violence has been established in contact proceedings, the court must assess the harm suffered by the child, the risk of future harm, parental conduct, motivation, likely behaviour, insight, and capacity to change. Contact may be ordered only if the child’s physical and emotional safety, and that of the resident parent, can as far as possible be secured. After fact-finding, the parents should have an opportunity to address the effect of the findings and future conduct. Under paragraph 16 of Practice Direction 12J, a Cafcass report should be ordered unless unnecessary to safeguard the child’s interests. Delay alone does not justify refusal where expert assistance is needed.

These were joined appeals by the mother concerning inter-dependent interim contact decisions relating to two children. The father sought increased contact away from a contact centre. After a three-day fact-finding hearing, HHJ Yelton made serious findings concerning domestic violence, harassment and controlling behaviour, but refused a request for a section 7 welfare report and psychological assessment. He later ordered that the father could take the children out of the contact centre unsupervised for short periods, with a review. The mother challenged the refusal of further evidence and the judge’s assessment of welfare and risk. The central issue was whether contact could properly be varied after fact-finding without further evidence from the parents or professional assistance.

Lady Justice Black gave the leading judgment. Sir John Chadwick and Lord Justice Thorpe agreed. The appeals were allowed.

1. The change from contact wholly within a contact centre, with the mother’s consent, to unsupervised outings was a material change in the nature of contact, even though its frequency and duration remained unchanged.
2. In a case involving established domestic violence, the court must apply the welfare checklist to the findings. It must consider the child’s past and prospective harm, the safety of the child and resident parent, and both parents’ conduct. The assessment includes the contact parent’s motivation, likely behaviour, capacity to appreciate the effect of past and potential violence, attitude to past conduct, and capacity to change. These requirements were stated in Practice Direction 12J, paragraphs 26 and 27.
3. The court may analyse the welfare checklist in section 1(4) of the Children Act without expressly citing the provision. The judgment must nevertheless show that the relevant principles and factors were considered and correctly applied.
4. After fact-finding, both parents needed a further opportunity to give evidence directed to the consequences of the findings. The mother needed to explain their effect on her and the children. The father needed to explain his response to the findings and how his future attitude and behaviour would differ.
5. Paragraph 16 of Practice Direction 12J imposed an obligation to order a Cafcass report unless it was unnecessary to safeguard the children’s interests. Where the issues required expertise or information that the judge had not sufficiently obtained himself, psychological or other professional assistance was required. The likely delay did not justify proceeding without it.
6. The father’s conduct extended over several years, included an incident after contact had resumed and occurred when the children were present. It could not safely be attributed solely to temporary mental-health difficulties or contact-related agitation. The judge therefore proceeded prematurely and the matter required further expert assistance.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 528, the joined appeals were allowed.
2. Cambridge County Court: HHJ Yelton made findings of fact on 3 August 2011, refused further welfare and psychological assessments, and on 5 August 2011 varied the interim contact arrangements to permit short unsupervised outings from the contact centre.