AA v BB & Ors

In child-arrangements proceedings involving alleged domestic abuse and an ongoing criminal investigation, the Family Court must itself determine whether contact is safe. It must assess all available evidence relevant to physical and emotional safety before, during and after contact. The outcome of a criminal investigation cannot determine whether contact should become unsupervised, since charging and conviction decisions apply different procedures and a higher standard of proof. Agreed findings may also require reconsideration if new police disclosure undermines their integrity. Appellate courts should generally defer to a trial judge immersed in the evidence, but must intervene where contact arrangements are made on an impermissible basis.

The appellant mother challenged a final child-arrangements order made by Her Honour Judge Earley on 22 August 2023. The order provided for professionally supervised contact while criminal proceedings were pending, with contact becoming unsupervised and extending to overnight stays if the police took no further action. If the father were convicted, a further risk assessment was required.

The appeal concerned whether the judge could make contact progression depend on the outcome of the criminal investigation and whether the requirements of Practice Direction 12J, paragraphs 35 to 37, had been applied. The central issue was whether the Family Court had adequately assessed the risks to the children and the mother on the evidence available to it.

1. The appeal was allowed on grounds 3 and 6. The order providing for contact to increase and become unsupervised was set aside, and the case was remitted to the same judge for further directions and a case-management hearing.

2. Although an appellate court must show considerable deference to a trial judge who has heard the evidence and is immersed in the case, that restraint does not permit an order based on an impermissible legal approach. The judge below had properly recognised that police-held material might be relevant, but erred by making the progress of contact depend on whether the investigation resulted in charges or conviction.

3. The Family Court itself had to determine whether the physical and emotional safety of the children and the mother could be secured before, during and after contact, based on all available evidence. Criminal charging and conviction decisions are made on a different basis and to a higher standard of proof. Evidence informing the police investigation therefore had to be assessed in the family proceedings.

4. The relevant risk was not confined to direct physical or sexual harm to the children. It also included the effects of the father’s private and sexual behaviour and the risk posed to adult females. The agreed findings in The Way Forward did not prevent consideration of new police disclosure if it undermined their integrity.

5. The mother’s application to reduce contact pending remittal was refused. Existing professionally supervised contact was maintained because it secured the physical and emotional safety of the mother and children.

• High Court (Family Division): appeal from the Family Court decision of Her Honour Judge Earley dated 22 August 2023. Appeal allowed on grounds 3 and 6; the relevant contact order was set aside and the case remitted for further directions.