The High Court quashed a lower court decision due to serious procedural errors and the perception of potential harm to the children.

Background:

The parties had been married but, after they separated in August of 2020, the father issued a Form C100. Days later, the mother issued an application under the Family Law Act 1996 which resulted in a non-molestation order being made in the mother’s favour in September 2020. The father unsuccessfully sought to appeal the order.

Subsequently, the father made an application for unsupervised contact and in support submitted documents confirming community domestic abuse programme (CDAP) attendance and attendance with a psychologist. He argued that he had changed and that, while the supervised contact had been a practical short-term solution, the time had come to move on. The mother’s case was that while the respondent had attended CDAP, she had not been convinced that he had gained insight into his behaviours and their impact on her. Further, the mother did not accept that the father had undergone the change she considered necessary to ensure the children would be safe from emotional harm in his care. 

The first instance Judge had ordered that an independent social worker assess whether the case should move from supervised to unsupervised contact. The mother subsequently appealed the order made in May 2024. 

Decision: 

The High Court allowed the appeal. After acknowledging the reasons, the first instance Judge made the decision and the Court concluded that the Judge had fallen into serious procedural error in that the original decision had been wrong and could not stand for four inter-related reasons. 

Firstly, the case is highly contentious and the mother did not accept that the father had fundamentally changed to ensure safe contact with their children. Since there had been a significant challenge to the evidence of change, the father’s application should have been set down for a hearing in which the challenged evidence could be cross-examined. Due to the fact that it was a big step moving from supervised to unsupervised context, Section 1 of the Children Act 1989 should have applied. The Judge should have then considered the Section 1 “factors through the prism of Practice Direction 12J would have included consideration of any risk of harm to the children and any impact of the change in contact arrangements upon them directly and indirectly through the impact on the appellant, their mother with whom they live”.

Second, given the absence of a hearing permitted to challenge any posited evidence of substantial change, the Judge considered that the Court did not ensure that the children would not be exposed to unmanageable risk of harm and that unsupervised contact was in their best interest. 

Third, the first instance Judge delegated too much of her judicial function to the independent social worker.  Moreover, the social worker did not have a copy of the case paper.   The order had therefore not provided an effective mechanism for such a challenge and accordingly had been unfair.

Implications:

This decision demonstrates that parties can successfully challenge an order if they feel the Judge did not listen to their concerns. The best interests of the children are of paramount importance to the courts which would prefer to delay the decision rather than make a decision which could be detrimental. 

Moving from supervised to unsupervised contacts is a big step and requires the courts to apply Section 1 of the Children Act 1989 and address all the factors.