A (A Child)

Where domestic abuse has been established, the court determining child arrangements must give the findings appropriate weight and conduct the risk assessment required by FPR 2010, PD12J. An express reference to the Practice Direction is wise, but its absence does not establish legal error where the welfare reasoning substantively addresses its requirements.

Only allegations proved on the balance of probabilities form the factual basis for later welfare decisions. A court may order supervised contact where it is safe, promotes the child’s welfare and adequately protects the resident parent’s emotional safety. Psychiatric evidence must be weighed with other welfare evidence, including the harm caused by delay.

The mother appealed against a Brighton Family Court order of 14 January 2015 requiring her three-year-old daughter, R, to have weekly supervised contact with her father. At an earlier fact-finding hearing, the judge had found that the father had sexually abused the mother during the marriage and had committed limited physical domestic violence.

The mother had post-traumatic stress disorder resulting from the abuse. She sought to defer direct contact until she had received cognitive behavioural therapy. The judge preferred the CAFCASS advice that contact should resume without further delay in a supervised setting. The appeal alleged that the judge had minimised the abuse, failed to assess risk under PD12J, and gave insufficient weight to the psychiatric evidence.

1. Appeal dismissed unanimously. McFarlane LJ, with whom Tomlinson and Longmore LJJ agreed, held that the supervised-contact order was within the range of justifiable welfare determinations.

2. Fact-finding is a positive process. Facts found proved on the balance of probabilities become the factual basis of the proceedings. Allegations not proved, including matters on which the judge made no finding or expressly declined to make a finding, cannot be relied upon in the subsequent welfare determination. The mother had not appealed the fact-finding judgment and could not enlarge its findings.

3. Where domestic abuse is established, the court must give the findings appropriate weight in accordance with Re L [2001] Fam 260 and conduct the risk assessment required by FPR 2010, PD12J. Although an express reference to PD12J is wise, the Family Court’s analysis was compatible with paragraphs 35 to 37. It found supervised contact safe for R, addressed the mother’s emotional safety and PTSD, considered the father’s likely conduct and motivation, and concluded that there was no relevant prospect of coercive behaviour because the parents would not communicate directly.

4. The judge had not minimised the findings. The physical incidents were properly characterised as low level on the facts found. The serious sexual abuse was central to the assessment because it caused the mother’s PTSD, but it did not establish a sexual or physical risk to R in supervised contact. The father’s non-acceptance of the findings did not require therapeutic work before supervised contact, though the issue could require reconsideration if unsupervised contact were later proposed.

5. The psychiatric evidence was given proper weight. Its inability to predict either the mother’s response to therapy or a reliable timescale entitled the judge to weigh it against the child’s need to resume a relationship with her father without prolonged delay. He was entitled to conclude that immediate supervised contact better served R’s welfare.

• Court of Appeal (Civil Division) — dismissed the mother’s appeal and upheld the supervised-contact order: [2015] EWCA Civ 486.
• Brighton Family Court — on 14 January 2015, HHJ Farquhar ordered weekly supervised contact between R and her father. No citation for that judgment was stated.