TM v TF

Permission to appeal a child-arrangements decision should be refused where the lower court has applied the framework in PD12J, assessed the risks arising from domestic abuse, and made a cautious, staged progression of contact that is welfare-led and supported by the evidence. A parent’s failure to accept findings of domestic abuse is a significant concern, but it does not automatically prevent direct contact or overnight stays where the court concludes that risk is manageable and the arrangements serve the child’s interests. The child’s wishes and feelings must be considered, but the weight given to them is for the trial judge. Judicial questioning is permissible where it assists the court to assess risk and welfare, provided the hearing remains objectively fair. A further review before making final orders may be appropriate where the court needs evidence about how staged arrangements operate in practice.

The mother appealed, or sought permission to appeal, an order made by HHJ Kushner in the Luton Family Court on 31 May 2024. The order provided for a staged progression from daytime contact to overnight stays between the parties’ nine-year-old son and his father, followed by a review and possible final orders.

The appeal followed earlier findings of serious domestic abuse against the father, which he continued not fully to accept. The mother relied on six grounds, including alleged failures to apply PD12J, procedural unfairness, insufficient weight given to the child’s wishes and feelings, and improper case management. The central questions were whether the grounds had a real prospect of success or raised another compelling reason for an appeal.

1. Permission refused. The six grounds of appeal had no real prospect of success, and there was no other compelling reason for the appeal to be heard. The stay was lifted and overnight contact was directed to commence in accordance with the order below.
2. The findings of serious domestic abuse remained of the utmost significance. Nevertheless, the lower court was not required automatically to prevent progression of contact because the father did not accept the findings. PD12J provides a framework requiring domestic abuse and its effects to be considered carefully, but welfare principles remain decisive. Direct arrangements may be made where the court is satisfied that risk is manageable and the arrangements are in the child’s interests.
3. The lower judge had considered the father’s non-acceptance, his participation and progress in a domestic-abuse intervention programme, the evidence concerning current risk, and the positive relationship between father and child. The programme’s lack of formal accreditation did not require its evidential value to be disregarded where Cafcass had accepted it.
4. The finding that the child might be influenced by the mother’s negativity was not a finding of alienation. The judge was entitled to investigate the reasons for the child’s reluctance and to ask questions about the child’s circumstances, home life and risks. Such questioning was permissible if directed to the best-interests assessment and did not render the hearing objectively unfair.
5. The child’s wishes and feelings had been considered. Their weight was a matter for the trial judge, who was entitled to take account of the history of successful incremental progression and the Cafcass evidence supporting eventual overnight contact.
6. It was within the judge’s case-management powers to postpone final orders and direct a further report and review. The decision was reasonably understood as cautious assessment of how the first overnight arrangements operated, rather than coercive pressure on the mother.

• High Court (Family Division): Permission to appeal the order of HHJ Kushner dated 31 May 2024 was refused. The stay was lifted and overnight contact was directed to commence from 21 September 2024, unless otherwise agreed.