FA-2024-000359 - [2025] EWHC 857 (Fam)

Decision

As these proceedings are still going on, and important decisions still lie ahead, I will avoid descending into any more detail of the case than is necessary.

I am very conscious that I am dealing with case management decisions, and that considerable deference must be given to the judge who heard the case on the day. He assimilated a great deal of information in a short time and plainly sat over the lunch hour to try and deal with the case for the benefit of the parties. He fitted more than one hearing in this case before him that day and gave an extempore judgment. He wished to avoid the trauma and expense for the parties of having a lengthy hearing but equally there was no question that he took the violence and domestic abuse as alleged in this case very seriously. It is vital to be aware of this when considering the decisions he made.

I also wish to acknowledge that the father has made significant admissions, and that he has been engaging very well with his probation officer. He has expressed remorse and is desperate to resume a relationship with his children.

Nonetheless, I have come to the conclusion that the judge was wrong to make the orders he did and that they must, therefore, be set aside. They are all decisions which were likely to have a significant impact on the outcome of the proceedings.

The three decisions which are the subject of this appeal are all linked, and stem from what I believe was a misapprehension by the judge that the question of whether or not the father should be able to have some form of face to face contact with the children in the medium and longer term was no longer seriously in issue. That misapprehension affected his entire approach to the case.

At paragraph 8 of his judgment, the judge recorded that ‘mother’s position is that before she consents to any form of direct contact there has to be a proper professional risk assessment. She does not say in the long term there should be no direct contact. She does say there should not be such contact at the present time. Much though I would like to advance this case substantially, I think the mother is correct in that assertion’.

At paragraph 12, he went on to say ‘thus with the children’s welfare as my paramount consideration and applying the welfare checklist, I believe it can fairly be said that there are strong reasons to believe not just that the children want, but that they need a relationship with their father. That is why in no way should an attempt be abandoned to establish a relationship between father and children, but the reality of them meeting their father again after more than a year may not be as simple as that’.

In fact, the mother’s case was that she wished to have a risk assessment based upon either realistic concessions by the father or the outcome of a fact finding hearing before being able to say whether she would support face to face or live video contact at all. She remained very frightened of the father and the risk of harm that he posed. There is no doubt that the judge considered that the introduction of contact should be delayed until there was a proper plan and that it should proceed very cautiously with the safety of the children in mind, but he was still focussed on moving the case on and tried to do this by cutting out what was a necessary stage.

There is a significant gulf between the mother’s allegations and the father’s admissions and, in my judgement, the judge was wrong to decide that the already listed fact finding hearing was not necessary and should be vacated. The allegations made by the mother are extremely serious, and include physical violence, strangulation, threats to kill herself and others, threats of suicide, property damage and verbal abuse. She alleges that a significant amount of this behaviour occurred in front of the children. The father’s admissions fall some way short of accepting this. He accuses the mother of significant exaggeration. He alleges that she was abusive and violent herself, that she was controlling and dominating in the relationship, and that sometimes her actions triggered his symptoms of PTSD which, in turn, led to him losing control.

These are very different accounts which are relevant to the welfare outcome for the children as they affect the level of risk posed by the father.

I think Ms. Hylton is right when she submitted that the judge expressly did not exclude a composite welfare and fact finding hearing taking place in the future but the directions he made for the ISW report did not require her to undertake a risk assessment or a full section 7 report for the next hearing but to devise a plan for the re-introduction of face to face contact for the court to consider. That was premature.

So too was the order for unsupervised video contact. Even if it was not specifically pleaded as such, it was clear from her statement that the mother was alleging a pattern of abusive and bullying behaviour on the part of the father which included threatened and actual violence. The risk to the mother and children is of emotional and psychological, as well as physical, harm, and the fact that the contact was to be virtual is not an answer to that. This issue needed to be weighed in the balance before any interim order was made in accordance with the provisions of PD12J. In his judgment, the judge referred to the need for the court to be satisfied that any interim order did not expose the child or parent to an unmanageable risk of harm, but only in the context of direct (by which he meant face to face) contact.

Ms. Hylton pointed out how interactive the recorded video messages had been, and how naturally the judge’s order followed from this, but the exchange of recorded video messages has more protection built in. It permits the messages to be screened in advance, video contact, even if it is recorded, does not. The mother would have had to have carried out some monitoring of the video contact as it happened, with the father engaging with the children over a live link in the family home.

For all the reasons I have set out, I allow the appeal on all three grounds. I will remit the case to Ms. Justice Henke, who is the Presiding Judge for the South East Circuit, to determine allocation and next steps. I sincerely hope it will be possible to provide this case with judicial continuity, given the sensitivities involved, and the now substantial delays.