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Family Law

The leading authority on all aspects of family law

06 APR 2009

CONTACT: Re Z (Unsupervised Contact: Allegations of Domestic Violence) [2009] EWCA Civ 430

(Court of Appeal; Wall and Wilson LJJ; 6 April 2009)

Following the parents' separation the mother made allegations of domestic violence by the Algerian father. The mother also feared that the father would abduct the children to Algeria; the father admitted that he had torn up the mother and the children's Belgian passports. A fact-finding hearing was ordered. A Cafcass officer who observed supervised contact before the hearing reported that the eldest child, aged 6, was frightened that the father would take him to Algeria, and also of violence, but that the contact with the two younger children, aged 3 and 2, had gone well, despite initial anxiety on the children's part. She also reported the father behaving angrily in front of the children in an inappropriate way. Her interim report was appropriately cautious, given that the fact-finding hearing had not yet taken place, deferred full consideration of the welfare checklist until after the fact-finding hearing, and recommended supervised contact, although it was not clear whether this recommendation applied only to the elder child. At the beginning of the fact-finding hearing counsel went to see the judge to obtain an indication of the nature of his views in relation to the mother's allegations. At the end of the first day, when the judge had heard evidence from the mother and from witnesses called on her behalf, there was an incident outside the judge's room that resulted in injuries to the father's cohabitee. The following morning the judge, of his own initiative, expressed his view that the fact-finding hearing should not go ahead, even though the father had not yet been cross-examined. Unfortunately, the Cafcass officer was ill and unable to attend. The judge went ahead in any event and ordered unsupervised contact to the two younger children.

Although referred to it, the judge had failed to follow the Practice Direction: Residence and Contact Orders: Domestic Violence and Harm [2008] 2 FLR 103, a document about which all practitioners and all tribunals ought to be very much aware. The Practice Direction, whose importance could not be overemphasised, placed proper and firm emphasis on the importance of the fact-finding exercise. Given the allegations raised, the judge should have conducted a fact-finding hearing; only if, at the conclusion of that hearing, the judge had found as a fact that the children were in no way at risk or that, for some other reason, contact, unsupervised or unsupported, could take place, should or could he have made an order for contact. Judges were not entitled to take shortcuts, which either ran the risk of compromising the welfare of children or which failed to follow accepted practice: the judge had done both in this case. The judge must hear all the evidence at a fact-finding hearing; there was no equivalent of the concept of 'no case to answer' in proceedings relating to children. Furthermore, the original decision that a fact-finding hearing was necessary had been right, not least on the issue of a potential abduction to Algeria: there was clear evidence of a threat to remove the children to a country that was not a party to the Hague Convention. There should not be private discussions between the judge and counsel: such discussions had not survived the Human Rights Act 1998. In cases involving children everything should be done in court and on the record.

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