T & Anor (Appeal: Fair Hearings: Delegation of Judicial Functions), Re

An appeal concerning progression from supervised to unsupervised child contact must be determined fairly where the evidence of change and future risk is materially disputed. The court must apply section 1 of the Children Act 1989 and consider the safeguards in Practice Direction 12J, including whether contact exposes the children to an unmanageable risk of harm.

A judge must permit effective challenge to disputed evidence before deciding that contact should progress. The judicial decision whether contact is safe and in the children’s best interests cannot be delegated to an independent social worker. Any appointed assessor must have sufficient knowledge of the case and access to the relevant material.

The parties were parents of two children involved in lengthy private law proceedings. Earlier findings included serious emotional, psychological and physical abuse, coercive and controlling behaviour, and threats of rape. Contact had therefore been ordered to remain professionally supervised.

In 2024 the father applied for unsupervised and staying contact, relying on therapy, completion of a domestic abuse programme and positive supervised-contact reports. On 10 May 2024, HHJ Davies granted permission to make the application. On 22 May 2024, after a short remote hearing, she directed an independent social worker to prepare a section 7 report and ordered that unsupervised contact should begin if the report was positive.

The mother appealed, arguing that the order was procedurally unfair, failed to address risk and improperly delegated the judicial decision to the social worker.

1. Appeal allowed. The order of HHJ Davies dated 22 May 2024 was set aside. The father’s application for unsupervised and staying contact was remitted to the Family Court for hearing before a different judge.

2. The appeal jurisdiction under FPR rule 30.12(3) was engaged because the decision was wrong and unjust by reason of serious procedural irregularity. The appellate court was required to respect the trial judge’s evaluative role, applying the principles in Piglowska v Piglowski, but that deference did not cure the defects in the hearing.

3. Progression from supervised to unsupervised contact was a significant and substantive step. In a case where the mother disputed the father’s alleged change and continuing risk, the court should have applied section 1 of the Children Act 1989 through the framework of Practice Direction 12J. It had to consider whether the proposed contact was in the children’s best interests and would expose them to an unmanageable risk of harm.

4. The mother had not been given an effective opportunity to challenge the evidence relied upon by the father. A proper hearing was required at which the evidence of change could be tested, potentially including cross-examination of the father and the professionals whose evidence he relied upon.

5. HHJ Davies had wrongly delegated a judicial function to the independent social worker. The order made progression to unsupervised contact conditional on a positive assessment by that social worker. The decision whether contact should progress, and whether it was safe and in the children’s best interests, had to be made by the judge after a fair hearing.

6. The social worker had only supervised contact and had not received the case papers or the mother’s challenge to the evidence of change. She therefore lacked the material necessary to make an informed assessment of safety and best interests.

7. The children were joined as parties under FPR rule 16.2 and a rule 16.4 guardian was directed to represent them. The reporting restriction order remained in force. There was no order for costs between the parties.

• Family Court at Canterbury: HHJ Davies made the order dated 22 May 2024 directing a section 7 report and providing for unsupervised contact if the assessment was positive.
• High Court (Family Division): Permission to appeal was granted at the rolled-up hearing. The appeal was allowed; the order was set aside and the application was remitted for rehearing before a different judge.