E,F and G (Interim Child Arrangements), Re

Where disputed allegations of domestic abuse remain undetermined and a fact-finding hearing has been directed, an interim child-arrangements order must satisfy paragraph 25 of Practice Direction 12J. It must be in the child’s interests and must not expose the child or other parent to an unmanageable risk of harm. A court cannot treat unsupervised contact as a harmless test of arrangements before fact-finding. Until the allegations have been considered, the extent of risk may be unknown and supervision may be required. Children’s wishes and positive contact experience do not alone establish safety. Delay is a factor, not an automatic reason to relax safeguards. Where no qualified legal representative is available, an adjournment may be appropriate in a complex case; the judge is not automatically required to conduct cross-examination personally.

Parents of three girls were involved in private law proceedings concerning child arrangements, alleged domestic abuse and an application for female genital mutilation protection orders. The High Court had directed a fact-finding hearing and, after no qualified legal representative was found for the father, adjourned that hearing. It nevertheless ordered that the father should have unsupervised contact before the fact-finding hearing.

The mother appealed both decisions. The issues were whether the adjournment was a permissible case-management decision and whether unsupervised interim contact complied with Practice Direction 12J while the allegations remained unresolved.

Baker LJ, with whom Laing and Warby LJJ agreed, allowed the appeal in part.

1. The decision to adjourn the fact-finding hearing was a case-management decision. The Court of Appeal would intervene only for an error of principle, reliance on irrelevant matters, failure to consider relevant matters, or a decision outside the generous ambit of the judge’s discretion. Part 4B of the Matrimonial and Family Proceedings Act 1984, Practice Direction 3AB and the guidance in Re Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22 required the court to consider available alternatives when no qualified legal representative could be found. They did not automatically require the judge to conduct questioning personally. Given the complexity of the issues and the judge’s conclusion that a fair trial could not otherwise be achieved, the adjournment was permissible.

2. The obligation under section 1(2) of the Children Act 1989 to have regard to delay did not require the court always to choose the course which avoided delay. The judge was entitled to balance delay against the need for a fair trial.

3. Ground 1 succeeded. Paragraph 25 of Practice Direction 12J applied because the court had already directed a fact-finding hearing into disputed allegations of domestic abuse. An interim child-arrangements order could therefore be made only if it was in the children’s interests and would not expose them or the other parent to an unmanageable risk of harm.

4. The judge’s reasoning that unsupervised contact could be tested before findings were made was inconsistent with Practice Direction 12J. The extent of the risk remained unknown while the allegations were unresolved and was therefore unmanageable unless contact was supervised. The children’s wishes, positive contact experiences and the judge’s application of the welfare checklist did not establish that unsupervised contact was safe. Serious findings might also require further assessment and completion of recommended work before contact could safely expand.

5. The court should not discount the professional opinion of the Cafcass officer because of a general perception that Cafcass was risk-averse. The order for unsupervised contact was set aside. The matter was directed to be listed promptly before the local designated family judge for further case management and re-arrangement of the hearing before the same or another judge, since the judge’s comments had understandably caused the mother to feel that the allegations had been predetermined.

• High Court of Justice, Family Division: HH Judge Tolson KC adjourned the fact-finding hearing because no qualified legal representative was available for the father and ordered unsupervised contact pending the resumed hearing.
• Court of Appeal (Civil Division): Ground 2 was dismissed. Ground 1 was allowed, paragraph 7(b) of the order was set aside, and the matter was directed to be re-listed for further case management.