A (a child), Re (a child)

An appellate court reviewing a discretionary interim child-contact order should focus principally on the material before the judge. An increase in unsupervised contact may be premature where a commissioned risk assessment is directed to the very emotional-harm risks arising from that increase, and the judge gives no adequate reason for acting before the assessment.

Serious findings about a parent must be based on proper material, be justified, and follow a fair opportunity for that parent to answer them. A judge may express provisional observations before all evidence is available, but they must be clearly identified as provisional. Findings unnecessary to determine the live issues at a directions hearing should not be made.

The mother appealed an order of HHJ Owen QC in Lincoln County Court concerning her four-year-old daughter’s contact with the father. The judge had confirmed that the father should undergo a psychological risk assessment, including an assessment of the risk of emotional harm arising from his attitude towards the mother during unsupervised contact.

Pending that assessment, the judge substantially relaxed contact restrictions, permitting the father to take the child away from the contact centre for most of a three-hour session. In his judgment, he also made robust observations about the mother’s conduct and its alleged emotional impact on the child. The mother challenged both the interim contact arrangement and those observations.

1. Appeal allowed. Black LJ, with whom Patten and Mummery LJJ agreed, held that the interim contact order was premature on the material before the county court.

2. The appellate court’s task was to review the discretionary decision by reference principally to the position before the judge. The guardian’s later view and the subsequent improvement in contact could not displace that focus.

3. The judge had decided that a psychological assessment was needed to address the risk of emotional harm to the child from the father’s attitude towards the mother in the context of unsupervised contact. The assessment was also envisaged as part of the preparation for a future move to more normal contact away from the centre. The guardian opposed an increase in time alone until the assessment was available. The judge nevertheless immediately enlarged unsupervised contact beyond the centre and local area without explaining why it was appropriate to do so before receiving the assessment. That decision was therefore premature on the particular facts.

4. The court restored the previous interim arrangement: contact would be mainly at the contact centre, with a one-hour outing on foot in the locality. This preserved the benefit of the limited outing, for which there was no evidence of harm, without expanding unsupervised contact to an extent that might create the emotional risks under assessment.

5. The judge’s robust observations about the mother were set aside. Findings that affect the future course of proceedings, including expert assessment, must rest on proper material and be properly justified. At this directions hearing there were no parental witness statements, the observations were unnecessary to decide the live issues, and the mother had no proper opportunity to address them. Provisional observations may be made before all evidence is assembled, but they must be clearly identified as provisional.

6. The case was remitted to the county court for progress towards a final hearing before a different judge.

• Court of Appeal (Civil Division) Allowed the mother’s appeal, restored the earlier interim contact arrangement, set aside the challenged observations about the mother, and remitted the case for further hearing before a different judge: [2013] EWCA Civ 543.

• Lincoln County Court HHJ Owen QC, on 13 November 2012, confirmed a psychological risk assessment of the father and permitted him to take the child away from the contact centre for most of a contact session.