C v D

In determining child arrangements, the court must decide disputed allegations on the balance of probabilities, using evidence and proper inferences rather than suspicion or speculation. A finding that a parent used physical chastisement may create a significant risk of repetition, particularly during longer periods of care. Contact should therefore be increased only where the evidence shows that the children can be safeguarded and the parent has demonstrated meaningful and sustained change in the relevant parenting approach. Welfare remains paramount, and parental involvement is presumed beneficial unless the evidence shows otherwise. Any progression from short daytime contact to overnight or holiday contact should be gradual, carefully planned and supported by appropriate safeguards.

The father applied under section 8 of the Children Act 1989 for increased time with his two daughters, including overnight and holiday contact. The court directed a limited fact-finding exercise concerning allegations that he had used stress positions as punishment or physical chastisement of one child. The mother supported a continuing relationship but sought safe and consistent arrangements. The Children’s Guardian recommended that the factual issue be determined because it affected assessment of risk during extended care. The central issues were whether the alleged chastisement occurred and, if so, what arrangements best promoted the children’s welfare.

1. Fact-finding. The burden of proof remained on the party making the allegation. The applicable standard was the civil standard, namely the balance of probabilities. The court applied the binary approach to fact-finding and assessed the evidence as a whole, including properly drawn inferences and inherent probabilities.
2. The court accepted the children’s consistent accounts, their demonstrations of the stress positions, the mother’s compelling evidence and the Guardian’s assessment. It rejected the father’s denial. It found, on the balance of probabilities, that he had used stress positions as punishment or physical chastisement of E when living with the family.
3. Welfare. The welfare of E and F was paramount under section 1(1) of the Children Act 1989. The court applied the presumption that parental involvement furthers welfare unless the contrary is shown, and considered the statutory welfare checklist. The children’s relationship with their father was beneficial, but their welfare required safe and consistent arrangements.
4. The finding created a significant risk that physical chastisement might recur, including in relation to F. The risk was heightened by the greater pressures arising during overnight and holiday care, E’s additional needs, and the father’s lack of practical and financial planning.
5. The court ordered that the children remain living with their mother and continue to spend four hours each month with their father during the daytime. Overnight and holiday contact was refused at this stage. Any future progression required meaningful and sustained change in the father’s attitude and parenting strategy, potentially demonstrated through an undertaking, parenting work and a safety plan. A further application could then be made.
6. Even without the finding about stress positions, the court would have required any progression to overnight contact to be slow and carefully managed, and would not have ordered extended school-holiday contact at that time.