M (Children: Contact in Prison), Re

When deciding contact between children and a parent convicted of domestic abuse, the court must assess the relevant welfare checklist factors in light of the abuse and apply FPR PD12J. It must consider the harm suffered and risked by the parent with care and the children, the safety of contact, likely behaviour, each parent’s capacity to meet the children’s needs, and the risk of conflicting narratives. Children’s wishes are important but are not determinative. A decision giving them primary weight without evaluating those matters, or without explaining rejection of the Guardian’s assessment, is unsafe. The appellate court should not substitute a new contact order on the same incomplete basis; the decision must be retaken.

Following the father’s conviction for raping the mother, Lieven J made a final order for prison visits, contact facilitated by the father’s partner, and monthly telephone contact between the father and two children aged 12 and 10. The mother appealed. The Children’s Guardian supported the appeal and recommended written contact only. The central issue was whether the judge had lawfully evaluated the children’s welfare, the effects and risks of domestic abuse, the mother’s position as primary carer, and the proposed forms of contact.

Lord Justice Peter Jackson gave the reasons for judgment. Lady Justice Falk and Lord Justice Lewison agreed.

1. Applicable welfare assessment. The decision-maker had to consider the children’s ascertainable wishes and feelings in light of their age and understanding, their emotional needs, any risk of emotional harm, and the capacity of each parent and relevant person to meet their needs. The assessment was supplemented by FPR PD12J, particularly paragraphs 36 and 37. The court had to consider the harm suffered by the parent with care, the harm that the children and that parent might suffer if contact were ordered, the physical and emotional safety of contact, and whether further domestic abuse could be prevented.
2. The court also had to consider both parents’ conduct and its impact, including the likely behaviour during contact of the parent against whom findings had been made, its effect on the children, and the parents’ capacity to appreciate the effect of past abuse and the potential for future abuse.
3. The judge’s conclusion was inadequately reasoned. She failed to evaluate the binding criminal conviction, the gravity of the offending, its impact on the mother, the father’s unrepentant attitude, the limited weight properly attributable to the children’s wishes, the need for continuity of secure care by the mother, the risk of conflicting narratives, the suitability of the father’s partner as facilitator, the practicality of supervising telephone contact, and the Guardian’s assessment.
4. The appeal was therefore allowed. The appellate court declined to substitute an order for written contact only, as that would repeat the same error. The relevant contact issue was remitted to the Designated Family Judge for directions and a final hearing. Pending a final order, contact was to take place only in accordance with the Family Court’s directions.

• Court of Appeal (Civil Division) — The appeal was allowed. Paragraphs 1 and 2 of the order dated 2 July 2024 were set aside, and the issue of contact was remitted to the Designated Family Judge.
• Family Court at Birmingham — Lieven J made a final order on 2 July 2024 providing for prison visits, contact facilitated by the father’s partner, and monthly telephone contact.