MS v MN

Where findings of domestic violence raise a real concern about the safety of child contact, direct face-to-face contact should not be ordered without an adequate risk assessment. Domestic violence does not create an automatic bar to contact, but the court must give proper weight to the need for the offending parent to demonstrate fitness to exercise contact and a willingness to change. The court must engage with Practice Direction 12J, relevant guidance and professional recommendations, and explain any departure from them. Where a specialist assessment is unavailable or unrealistic, the court may require a local authority report under section 7 of the Children Act 1989.

The mother appealed against an order made by His Honour Judge Tolson QC on 4 November 2016. The order provided for a short period of indirect contact followed by direct contact, supported or supervised. The parties had separated after allegations of serious domestic violence, and findings had been made that the father had assaulted the mother, threatened to kill her and behaved aggressively.

The appeal concerned whether the court was required to obtain a risk assessment before directing direct contact, and whether the lower court had adequately addressed the relevant guidance, authorities and CAFCASS recommendations.

1. The appeal was allowed. The lower court had failed to engage with Practice Direction 12J, the cited authorities and the CAFCASS recommendation, or to explain why immediate direct contact was appropriate despite the established findings of domestic violence.
2. Domestic violence does not automatically prevent contact. However, the court must assess whether contact can be safe and secure. The offending parent’s recognition of past conduct, willingness to change and ability to demonstrate fitness to exercise contact are important considerations.
3. Under section 16A of the Children Act 1989, a CAFCASS officer must provide a risk assessment where the officer has cause to suspect that the child is at risk of harm. The court could not disregard CAFCASS’s assessment that the existing order was unsafe.
4. Given the findings, the unresolved concerns about coercive control, aggression, threats, mental health and drug misuse, direct face-to-face contact could not safely be ordered without a further risk assessment. The court nevertheless emphasised that every reasonable avenue for establishing contact should be investigated.
5. It was unrealistic to order the father to fund a specialist assessment costing £1,600 when he was on benefits and had not paid for earlier drug testing. The court therefore directed the local authority, under section 7 of the Children Act 1989, to report on the safety of proposed contact and to assess the father’s risk.
6. The matter was remitted to the Central Family Court for a one-day hearing before a different Circuit Judge, listed after 1 June 2017. The local authority had 12 weeks to provide the assessment, subject to liberty to apply.

• High Court (Family Division): Appeal from an order made by His Honour Judge Tolson QC on 4 November 2016. The order was set aside in its operative effect, a section 7 report was directed, and the matter was remitted to the Central Family Court before a different judge.