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(Court of Appeal, Arden, Elias, Black LJJ, 13 February 2013)
Following the parents' separation proceedings took place to determine contact between the father and 8-year-old child. The mother claimed the father had been violent during the relationship and opposed contact between the father and child at the father's home.
At a fact-finding hearing the judge found that the parents' had a volatile relationship and that both parents could lose their temper and shout which had been witnessed by the child. However, the judge did not find the mother's allegations of direct physical or verbal abuse proved. The father was found to be controlling and aggressive at times.
Just prior to the judgment being given the mother alleged the father had assaulted her and as a result the child had disclosed to her allegations that the father had also assaulted him on several occasions. The social worker's initial assessment was that the father posed no immediate child protection concerns. In contrast to the mother's position, contact was extended albeit it had to be in a public place.
The Cafcass officer reported that the child would feel deprived and neglected by his father if the relationship were not allowed to flourish. She recommended a shared residence order with the child living predominantly with the mother.
At a directions hearing it emerged that a full hearing would not be possible for a further 6 months. The judge made interim measures pending the full hearing including extending the duration of contact and lifting the restriction on the father taking the child to his home. The mother appealed.
Although the judge did not address specifically PD 12J, Part 12 of the FPR 2010 he was well aware of the need to consider the likely impact of the domestic violence issue on the conduct and outcome of the proceedings. The practice direction did not prevent a judge from making an order for contact without making findings of fact in relation to disputed allegations of domestic violence. The mother failed to demonstrate that the judge had failed to conform to any provision of PD 12J.
Balancing the two main factors, namely the risk posed to the child of possible violence from the father against the child's need for a proper relationship with him, the judge was entitled to view the interim arrangements as unsatisfactory now that a full hearing would not be possible for 6 months. It had not been demonstrated that the judge had erred in making the order he did which was within the bounds of his discretion. Appeal dismissed.
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