S v F & Anor.

In determining child-arrangements applications following findings of domestic abuse, the court must treat the child’s welfare as paramount and assess whether contact can occur without an unmanageable risk of harm. The welfare checklist must be applied in light of the findings, including the effects of abuse on the child and resident parent, the applicant’s likely behaviour, motivation and insight, and the risk of further controlling or coercive behaviour. A court may reject expert evidence where it has a sound evidential basis and gives reasons. Good-quality contact may continue and progress, but supervision and protective orders should remain where the risk cannot yet be safely managed.

The father applied under the Children Act 1989 for direct contact with his son, including unsupervised contact and permission to take him to Pakistan or the Netherlands. The mother opposed unsupervised contact. Earlier proceedings had resulted in findings that the father had subjected the mother to serious physical and emotional abuse, and his application to reopen those findings had been refused. The child and mother had subsequently obtained asylum in the United Kingdom. The central issue was whether the father’s contact should remain supervised, having regard to the risk of abduction, the child’s vulnerability, the mother’s continuing anxiety, and competing expert and guardian assessments.

1. The father’s application for contact was determined on the basis that E’s welfare was paramount under section 1(1) of the Children Act 1989. The presumption that both parents should be involved in a child’s life did not require equal or unsupervised involvement.

2. Applying FPR Practice Direction 12J, the court had to ensure that contact would not expose E to an unmanageable risk of harm. It had to consider the effects of the established abuse on E and the mother, the father’s likely behaviour, his motivation, his capacity to appreciate the consequences of past abuse, and the possibility of future harm or abduction.

3. The father had made progress through therapy and had a positive relationship with E. However, his minimisation of the abuse, continuing blame of the mother, lack of empathy and strong sense of grievance created a high risk that he might remove E from the mother’s care. E was young, trusting and malleable, and the consequences of abduction would be serious emotional and psychological harm.

4. The court rejected Dr Anderson’s assessment that the father presented no significant risk. Under Re M-W (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, an expert advises but does not decide the case; the judge may reject expert opinion where there is a sound basis and adequate reasons. The assessment was insufficiently analysed and was outweighed by the guardian’s more thorough evaluation. The principle was reaffirmed in D (A Child) [2017] EWCA Civ 196.

5. Supervised contact therefore remained necessary, together with a prohibited steps order. Contact could increase in frequency, duration and community setting, particularly if the father moved to the Netherlands. Supervision could be reviewed and possibly relaxed sooner, but it might be required for up to two years and could not safely end until the recommended work with E and the mother had been completed.

The judgment describes earlier stages in the same proceedings. Findings of domestic abuse were made by District Judge Heppell in August 2020. Mrs Justice Arbuthnot refused the father’s applications to reopen those findings on 21 July 2021. The present judgment was a first-instance determination of the outstanding child-arrangements issues.