G-C (A Child)

In child-arrangements proceedings, a court which departs from a material recommendation made by a Cafcass officer must give clear reasons that engage with the risk identified by that recommendation. Adverse findings about a parent’s sincerity or motives require a fair evidential basis, ordinarily including an opportunity to give oral evidence. Where parental anxiety may itself affect the child, an appropriate expert assessment of family dynamics may be necessary before progressing to staying contact. Restrictions on a parent’s ability to take a child on holiday also require evidence and proper investigation.

The mother appealed an order of the Reading County Court which introduced weekend staying contact between Lilian and her father. The order also restrained the mother from taking Lilian abroad on holiday or removing her from school for holidays without the father’s consent or the court’s permission.

The Cafcass officer had initially recommended progression to staying contact. After reading the mother’s late statement, however, he gave oral evidence that her anxiety about staying contact could create a risk of harm to Lilian. The judge nevertheless ordered staying contact, criticised the mother, and did not obtain an assessment from Dr Berelowitz.

The central issue was whether those orders could properly be made on the procedure and evidence available at the hearing.

1. Appeal allowed unanimously. The order for staying contact and the prohibited steps provision were set aside. The matter was to be relisted promptly after an expert assessment of the family dynamics.

2. The judge was entitled to seek progression from visiting to staying contact. However, the Cafcass officer’s oral evidence had materially changed his written recommendation. He identified a possible risk that the mother’s anxieties about staying contact could affect Lilian adversely. Before rejecting that recommendation, the judge had to address that risk and give clear reasons for doing so. His judgment did not do this.

3. The judge could not properly condemn the mother or make adverse conclusions about her sincerity or motives without hearing her oral evidence. The procedural choice to hear only the Cafcass officer was understandable after time had been lost, but it restricted the findings the judge could fairly make.

4. The judge also misunderstood the proposed role of Dr Berelowitz. An assessment was not merely optional therapeutic assistance for the mother. It could investigate the family dynamics and assist both the parents and the court in achieving the appropriate progression to staying contact. A slower process, supported by that assessment, was required.

5. The restriction on holidays and school-time absence was procedurally flawed. The judge lacked the evidential material and investigation needed to impose it.

6. The court directed that a concise letter of instruction be settled for Dr Berelowitz, focused on how to progress from visiting to staying contact. Written submissions provided to the court should also be supplied simultaneously to the opposing party; private one-sided communications with the judge are improper save in a without-notice context preceding an inter partes hearing.

• Court of Appeal (Civil Division): allowed the mother’s appeal, set aside the December 2012 order, and directed an expert assessment before the remitted hearing.
• Reading County Court: HHJ Oliver ordered staying contact and imposed restrictions concerning holidays and school-time absence.