It is sadly the case that when one parent applies to the court for a child arrangements order to see their children, the other parent may raise serious allegations of domestic abuse against the applicant parent.
The court will of course have to determine the truth of the allegations, as the risk of harm to the children could clearly have a bearing upon what kind of contact, if any, the court should allow. The court will therefore often fix a ‘fact-finding’ hearing for the purpose of determining the truth, or otherwise, of the allegations.
But as we are all aware these types of proceedings can take many months, or even years, to resolve, and if the applicant parent does not have any contact with the children during this time this could be very damaging to their relationship with the children.
The court will therefore have to consider the possibility of the applicant parent having interim contact with the children, whilst the proceedings are ongoing.
However, when doing so the court must consider the possibility that the abuse allegations may be found to be proved, and take that into account when considering what form the interim contact, if any, should take.
Obviously, this can mean that safeguards should be placed when the contact takes place.
Or, to put it the other way, it can mean that it would be wrong to allow the applicant parent to have contact without safeguards, before the court has determined the truth of the abuse allegations.
This was demonstrated by a recent case in which the Court of Appeal found that the court had been wrong to allow a father to have unsupervised contact with his daughters prior to a fact-finding hearing to determine the mother’s allegations of domestic abuse against the father.
Barrier to safe contact
The case concerned a couple who married in 2011 and had three daughters, now aged 11, 10 and 8. The marriage broke down July 2022, when the mother and children moved into a refuge, where they still remain.
The father applied to the court for a child arrangements order. The application was opposed by the mother, who raised serious allegations of domestic abuse against the father. The allegations included physical abuse of the children and coercive and controlling behaviour towards the mother, both during the marriage and after the separation. The father denied the allegations.
At the first hearing in October 2022 the court made an interim contact order restricting the father’s contact to weekly indirect video contact for 30 minutes plus one letter a month. That was changed at a hearing in March 2023 when the court ordered that the father have supervised direct contact with the girls at a contact centre, plus telephone contact. The court also ordered that a Cafcass report be prepared.
The Cafcass officer filed her report in May 2023. The report included a recommendation that a fact-finding hearing into the allegations be held, as the allegations presented “a barrier to safe contact progression”. It also recommended that in the interim contact should continue to be supervised at a contact centre.
At a hearing in July 2023, directions were given for a fact-finding to take place in October 2023. The contact arrangements were varied so as to provide that “father and the children may during the contact session leave the contact centre and spend time in the community, provided the contact remains fully supervised.”
Unfortunately, the fact-finding hearing had to be adjourned until July 2024.
Meanwhile, and despite the Cafcass officer continuing to recommend that the contact be supervised in the absence of a fact-finding investigation, the judge found that the time had come to move to unsupervised contact with the children for the father. He therefore varied the interim contact so as to allow the father to have unsupervised contact with the children, for four hours on alternate weekends.
The mother appealed.
Unsustainable
Giving the leading judgment of the Court of Appeal Lord Justice Baker explained the approach that should be followed by the court when considering child arrangements cases involving allegations of domestic abuse:
“Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm”
In this case, he said, the judge’s assertion that the time had come to move to unsupervised contact was unsustainable. He went on: “The mother and the children have made serious allegations against the father. If they are found to be true, there is plainly an ongoing risk to the mother and the children. In those circumstances, there will be strong arguments against moving to unsupervised contact before a thorough assessment of the father and the completion of recommended work.”
He therefore allowed the appeal, and set aside the order providing for the father to have unsupervised time with the children before the fact-finding hearing.
Lady Justice Elisabeth Laing and Lord Justice Warby gave concurring judgments.
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