AA v BA

Where findings disclose serious domestic abuse, a court deciding contact must engage with the abuse, its effect on the child and the protective safeguards required before direct contact is ordered. The promotion of the child’s relationship with the non-resident parent cannot displace a careful assessment of welfare and safety. A proposed transition from indirect to direct contact should be supported by reliable evidence addressing identified risks, including substance misuse and engagement with relevant programmes.

The mother appealed against an order made by the Family Court at Luton extending the father’s contact with their young daughter from indirect to supervised direct contact. The earlier fact-finding judgment contained serious findings of abuse, threats, substance misuse and coercive behaviour. Cafcass had recommended continued weekly video contact, with any later application supported by evidence of consistent contact, relevant courses, abstinence from drugs and alcohol, and disengagement from criminal activity.

The appeal concerned whether the judge had properly considered those findings, the Cafcass assessment, and the applicable domestic-abuse practice directions before ordering direct contact.

1. The appeal was allowed. Paragraphs 6 to 17 of the order made by the Family Court were set aside. Contact remained indirect, and the matter was remitted to the Family Court at Bedford for allocation to a different judge.

2. The findings of fact disclosed serious domestic abuse, including threatening and violent conduct, drug and alcohol misuse, and conduct which undermined the mother. The judge below failed properly to consider the significance of those findings when deciding whether direct contact was appropriate.

3. The judge also failed properly to consider Practice Direction 12D and Practice Direction 12J. The seriousness of the domestic abuse required specific consideration. The promotion of the relationship between father and child could not be treated as determinative without addressing welfare and safety.

4. The Cafcass recommendation had been rejected without adequate evidential basis. There was no reliable evidence that the father had engaged with relevant courses, achieved abstinence, completed the required hair-strand testing, or addressed the risks identified in the fact-finding judgment. The later report indicated continuing cocaine, alcohol and codeine use, which required considerable scepticism about the explanation offered.

5. Even without the subsequent evidence, the failure to give proper consideration to the domestic-abuse findings and the applicable practice directions required the appeal to succeed. A transcript was ordered at public expense.

1. High Court (Family Division): The appeal from the Family Court at Luton was allowed. The provisions for direct contact were set aside and the matter was remitted to the Family Court at Bedford for rehearing by a different judge.
2. Family Court at Luton: Her Honour Judge Kushner ordered a progression from indirect contact to supervised direct contact on 29 September 2023.