H (A Child)

In family proceedings involving disputed allegations of domestic violence, PD 12J does not impose an absolute requirement for a fact-finding hearing before contact is ordered. The court must decide promptly whether findings are necessary and explain any decision not to make them. A separate fact-finding hearing is not always required.

An interim contact decision remains a welfare decision. The judge must weigh both the risk of harm from contact and the risk of harm from restricting a child’s relationship with a parent. Appellate intervention is limited to recognised errors in principle, material failures to consider relevant matters, or decisions outside the generous ambit of discretion.

Following parental separation, H lived with his mother and had contact with his father subject to restrictions requiring contact in public places and preventing contact at the father’s home. The mother alleged that the father had harmed H. A social worker and a CAFCASS officer recommended expanded contact.

A final hearing involving factual and welfare issues was expected, but delay meant that it would not take place until April 2013. On 29 October 2012, Judge Powles, hearing submissions only, varied the interim arrangements and lifted the restrictions on contact at the father’s home. The mother appealed, arguing that a fact-finding hearing was required first and that the decision pre-empted the welfare determination.

Appeal dismissed. Lady Justice Black gave the leading judgment. Lord Justice Elias and Lady Justice Arden agreed.

1. PD 12J. The practice direction does not prevent a judge from ordering contact without making findings on disputed allegations of domestic violence. The court must not ignore the domestic-violence issue. It must decide as soon as possible whether factual findings are necessary before making a final residence or contact order and must record reasons if it decides that they are unnecessary.
2. The practice direction does not require separate fact-finding and welfare hearings. The court must decide whether findings are needed at all and, if so, whether the factual and welfare issues should be dealt with separately or in a composite hearing. If a separate fact-finding hearing is necessary, directions should be given for it and the welfare hearing should be fixed at the same time. This was consistent with the broad family-court discretion described in Re C (Children) [2012] EWCA Civ 1489 and reiterated in Re TG (A Child) [2013] EWCA Civ 5.
3. When deciding interim contact, the child’s welfare is paramount under section 1(1) of the Children Act 1989. That paramountcy requirement does not govern case-management decisions. The absence of live evidence at an interim hearing does not invalidate the decision if the written evidence and submissions are sufficient to permit a proper welfare assessment, including appropriate consideration of risk.
4. The judge was entitled to look afresh at the interim arrangements because the anticipated fact-finding hearing had been substantially delayed. He was entitled to balance the risk of harm if contact occurred against the risk of harm from restricting H’s relationship with his father. He could take account of H’s positive relationship with his father, the artificiality of public-place contact, the length of the delay, and possible measures for managing risk.
5. The Court of Appeal should support robust but fair case-management and welfare decisions. It should intervene only for an error of principle, reliance on an irrelevant matter, failure to consider a relevant matter, or a decision so plainly wrong that it falls outside the generous ambit of discretion, as explained in Re TG [2013] EWCA Civ 5. The court should also avoid a narrow textual analysis of an extempore interim judgment, applying the approach in Piglowska v Piglowski [1999] 1 WLR 1360. Judge Powles had not fallen into error. His decision was supported by the evidence and lay within his discretion.

• Court of Appeal (Civil Division): The appeal against Judge Powles’s order was dismissed in [2013] EWCA Civ 72.
• Brentford County Court: His Honour Judge Powles made an interim order on 29 October 2012 lifting restrictions on contact between H and his father, pending a final hearing.