T (Children), Re

Before replacing supervised direct contact between a parent and young children with indirect contact, the court must explore every realistic option for maintaining safe supervision. The unavailability of an existing supervising agency or public funding does not by itself end that inquiry. A judge must also determine every application made and give intelligible reasons. On appeal, the court may restore an earlier contact order and remit an inadequately determined application for rehearing.

The father of two children appealed from decisions of His Honour Judge Compston in the Principal Registry Family Division. Existing arrangements provided for supervised contact because of a risk that the father might remove the children to Algeria. Following difficulties with the supervising agency and the withdrawal of Cafcass funding, the judge reduced contact to one indirect letter or card each month.

The father also applied to change the younger child’s name. The judge made no order, after being reminded of the application at the end of the hearing, but gave no reasons. The central issues were whether the reduction in contact was premature and whether the name-change application had been properly determined.

The Court of Appeal unanimously allowed the appeal on both issues.

1. Contact. The judge had treated the absence of immediately available supervision as meaning that nothing could be done beyond indirect contact. That approach was a misdirection. Where supervised contact is the only presently safe form of direct contact, the trial judge must investigate and explore every realistic option before making so significant a change to the continuing relationship between a parent and young children.
2. The Court of Appeal was entitled to substitute an alternative order. The indirect-contact order was set aside and the earlier order for supervised contact was restored. Questions concerning the practical implementation and funding of that order were remitted to the county court, before His Honour Judge Hughes or another judge.
3. Name change. The father’s separate application had been made, addressed in the Cafcass report and canvassed in evidence. The judge nevertheless failed to determine it properly and gave no explanation for the bare no-order outcome. That was indefensible. The issue was remitted to the county court for determination. The Court of Appeal did not prejudge the result of the rehearing.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 618, the application for permission was granted and the appeal was allowed. Supervised contact was restored, implementation issues were remitted, and the name-change application was remitted for rehearing.
• Principal Registry Family Division: His Honour Judge Compston reduced contact to indirect contact and made no order on the application to change the younger child’s name.