P (Children), Re

When determining child contact where there is a history of domestic violence, the court must consider that history in deciding both the amount and supervision of contact. Refusal to hold a discrete fact-finding hearing does not remove the need for a proper risk assessment. Before ordering unsupervised contact, the court must consider harm suffered, risks created, physical and emotional safety before, during and after contact, and the risk of further controlling or coercive behaviour under Practice Direction 12J, paragraph 36. It must also assess the parent’s ability to care for young children. A family assistance order should not be made without obtaining the appropriate officer’s opinion on its operation and duration, as required by Practice Direction 12M. Appeal allowed and remitted.

The mother appealed against a child arrangements order made by Mr Recorder Tolson QC at Exeter County Court. The order provided for the father to have direct contact with the parties’ three young children six times a year, unsupervised after the first visit, and included a family assistance order under the Children Act 1989.

The parents had a history of domestic violence, the father had had little recent contact with the children, and a supervised contact session raised concerns about alcohol use and his ability to care for all three children. The Recorder had declined a discrete fact-finding hearing and ordered unsupervised contact. The appeal concerned the treatment of the domestic violence history, risk assessment, supervision, welfare considerations and the making of the family assistance order.

Appeal allowed and matter remitted for review.

1. The Recorder was entitled to decline a discrete fact-finding hearing concerning the mother’s allegations arising from May 2013. On the evidence available, he could not make findings against the father in relation to that weekend. That decision did not, however, justify disregarding the established history of domestic violence.
2. Under paragraph 36 of Practice Direction 12J, the court had to consider the harm caused by the violence and the risk of further harm if contact were ordered. It also had to be satisfied, so far as possible, that the physical and emotional safety of the children and the mother could be secured before, during and after contact. The history was relevant to supervision as well as to the amount of contact.
3. The Recorder fell into significant error by treating the domestic violence history as irrelevant, failing to address the welfare checklist, and giving no adequate reasons for departing from the Cafcass recommendation that contact remain supervised. He did not undertake the necessary assessment of risks arising from handovers, disclosure of the mother’s address, the father’s alcohol use, or his limited ability to care for three very young children. The absence of a viable supervision plan did not itself justify unsupervised contact. A risk assessment and continuing supervision might be necessary even though no fact-finding hearing was required.
4. The appeal concerning the family assistance order was also allowed. Section 16(7) of the Children Act 1989 gave the court power to require a local-authority officer because the children lived in the relevant area. However, subparagraph 1.2 of Practice Direction 12M required the court first to obtain the appropriate officer’s opinion on the child’s best interests, the operation of the order and its duration. The local authority had not been given a proper opportunity to consider those matters. Any future order would require consideration of the case as a whole, including an appropriate risk assessment.
5. The presumption of parental involvement did not displace the requirement that contact be in the children’s best interests and safe both in relation to violence and the physical care of young children.

1. Court of Appeal (Civil Division): in [2015] EWCA Civ 466, the appeal was allowed and the matter remitted for review.
2. Exeter County Court: Mr Recorder Tolson QC made a child arrangements order on 29 September 2014 providing for periodic direct contact, unsupervised after the first visit, and made a family assistance order.