F v G

In child-arrangements proceedings, a court should not determine disputed allegations as a basis for restricting contact where fact-finding has not been ordered and the parties have not had a fair opportunity to address the issues. Welfare conclusions must rest on evidence properly tested at the hearing. The court must assess both the risks of continuing contact and the harm caused by abruptly ending an established parent-child relationship. Before terminating direct contact, it should consider whether a less restrictive arrangement, including supervised or interim contact, could address the identified risks. An appellate court should remit the case where the necessary welfare assessment has not been undertaken, rather than impose its own final arrangements.

The father appealed against an order made by Mr Recorder Evans on 18 February 2020. The order provided that the two children should live with their mother, have indirect contact only with their father, and that the father should be excluded from decisions concerning their education and health.

The English proceedings followed earlier proceedings in the United States, in which extensive contact and shared care arrangements had been ordered. At an early hearing in England, the mother withdrew an application for a fact-finding hearing. A Cafcass officer later made recommendations based substantially on allegations of domestic abuse and coercive control. The Recorder accepted those recommendations, made findings of fact, and ended direct contact.

The central issues were whether the Recorder had properly proceeded on disputed facts without a fact-finding hearing, whether the evidential basis was sufficient, and whether the welfare analysis adequately balanced the risks of contact against the harm caused by ending it.

1. Appeal allowed. The order ending direct contact and restricting the father’s parental responsibility could not stand.
2. The Cafcass recommendation was based on a view that the father had engaged in coercive and abusive behaviour in both the United States and the United Kingdom. Since the court had ordered that there be no fact-finding hearing, relying on those disputed matters placed the father at a disadvantage. The Recorder also relied on material from the United States proceedings and brief GP letters without sufficient clarity or opportunity for proper testing.
3. The finding that the children were suffering harm was closely dependent on the disputed allegations. The evidence also showed that the children were functioning well at school and had continued to spend substantial periods with their father. The Cafcass officer had not observed the children with him. The earlier United States assessment, although dated, contained positive observations of the father’s care and emotional warmth and should have been given greater weight.
4. The welfare evaluation failed adequately to weigh the harm caused by the immediate loss of the children’s established relationship with their father against the risks of continuing contact. Twice-weekly Skype calls were insufficient mitigation. Greater consideration should have been given to whether a less restrictive form of direct contact, including supervised or interim contact, could work.
5. The matter was remitted for a rehearing before another judge. A further FHDRA was to consider, among other matters, the scope of any fact-finding hearing, separate representation for the children, and whether psychological rather than psychiatric assessment was required. The appellate court declined to reinstate the earlier contact order or determine the final arrangements itself.

• High Court (Family Division): The appeal from the order of Mr Recorder Evans dated 18 February 2020 was allowed and the case was remitted for rehearing.