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(Court of Appeal, Mummery, Patten, Black LJJ, 16 May 2013)
The parents separated after a 3-year relationship and the, now 4-year-old, child lived with the mother while the father made an application for a defined contact order.
A schedule of agreed findings was agreed as opposed to a fact-finding hearing which recorded that the father had a conviction for rape. The Cafcass officer recommended a psychological risk assessment should take place but the father refused to participate and withdrew his contact application. Contact continued to take place on a weekly basis at a contact centre with provision to take the child out for one hour.
When the father initiated contact proceedings once more he was ordered to undertake a psychological assessment but again refused to participate. Nevertheless, contact was permitted to continue with provision for the father to take the child out during the 3-hour period for and increased duration of 2 ½ hours. The mother appealed that provision.
On the material available to the judge, he had been wrong to alter the contact arrangements in the way he did. In this particular case due to the mother's anxiety about the father's attitude and the potential for emotional harm of the child outside the supported environment of the contact centre in circumstances where the judge himself was sufficiently concerned to order a psychological assessment the relaxation was premature.
The provisional findings made by the judge as to the mother's attitude towards the father and the risk that posed to the child would be set aside. It was not necessary for the purposes of determining the live issues to make any findings about the mother, there were still gaps in the evidence and the mother had no opportunity to address the possible findings.
The appeal was allowed; contact was restored to a supervised basis aside from one hour which could be spent in the locality of the centre.
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