S (A Child), Re

Where domestic violence findings are followed by conflicting Cafcass assessments about direct contact, the issue is a welfare decision, not merely case management. In exceptional circumstances, a court should not decide the issue by choosing between opposing professional opinions without hearing from the officers where their concerns materially engage the child’s physical or emotional welfare. If oral evidence is not taken, the parties must have a proper opportunity to address the court on the competing views. Supervised direct contact is materially different from indirect contact, and agreement to contact in principle does not resolve whether direct contact is in the child’s best interests.

The mother appealed from an order made by HHJ Cliffe in Bradford County Court on 8 December 2011 concerning the father’s contact with their three-year-old daughter. Following findings of domestic violence and neglect, one Cafcass officer supported professionally supervised direct contact. A second officer recommended indirect contact until the father had demonstrated therapeutic engagement and accepted responsibility for his behaviour. The judge declined to adjourn for a contested hearing or hear oral evidence from either officer, and ordered supervised contact to proceed. The central issues were whether the decision was merely case management and whether the welfare question could properly be determined without hearing from the two officers.

Disposition. The appeal was allowed. The matter was returned to the county court for determination, although the court noted that the passage of time might make a different hearing format appropriate.

1. HHJ Cliffe’s order was a welfare decision, not merely a case-management decision regulating the form of evidence. It determined that contact should continue despite the second Cafcass officer’s contrary recommendation and the mother’s opposition.
2. The mother’s acceptance of the earlier interim arrangement did not settle the issue. The receipt of a conflicting Cafcass assessment, followed by the mother’s renewed opposition, constituted a change of circumstances which the court had to address.
3. Although the judgment was tailored to the exceptional facts and did not seek to restrict judges from deciding matters without oral evidence in appropriate cases, it was inappropriate here to determine the issue without hearing from two childcare professionals who maintained materially conflicting views. The meeting between them did not substitute for evidence or cross-examination. If the officers were not called, the parties should at least have had an opportunity to make submissions on the proper approach to each view.
4. The concerns raised by the second officer were legally material. They extended beyond physical risk to possible emotional harm arising from the mother’s reaction, the father’s attitude and his failure to acknowledge the findings. The guidance in Re L (A child) & Ors (Contact: Domestic Violence) [2000] 2 FLR 334 and Practice Direction 12J to the Family Proceedings Rules 2010 supported that conclusion.
5. Agreement that contact might occur in principle did not answer whether direct contact was appropriate. Indirect contact was materially different from supervised direct contact, and the latter required a proper welfare assessment.

• Court of Appeal (Civil Division): On 14 March 2012, allowed the appeal and returned the issue of contact to Bradford County Court for determination: [2012] EWCA Civ 617.
• Bradford County Court: HHJ Cliffe ordered on 8 December 2011 that interim supervised contact should proceed without a contested hearing or oral evidence from the Cafcass officers.