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09 JUL 2009

CONTACT: S v S [2009] EWHC 1575 (Fam)

(Family Division; Hedley J; 3 July 2009)

The father applied for contact with the two children. The mother made allegations of domestic violence, and a fact-finding hearing was ordered. The judge was obliged to adjourn the fact-finding hearing part heard, and in doing so made an order for interim supervised contact of one hour once a fortnight, completely supervised. The mother appealed.

The case raised an issue of increasing concern in London, that is the propriety of making interim contact orders when cases were adjourned for substantial periods of time. The problem was that an interim contact order begged the very question in the proceedings, namely whether there should be contact at all. On the other hand, if contact were eventually ordered, the longer the delays, the more inimical to the best interests of the child. For a variety of reasons there had been a significant increase in requests and directions for fact-finding hearings, as a result of which the family justice system in London was being tested to the limit, and one inevitable consequence had been greater delay. While the Court of Appeal had made it clear that a fact-finding hearing was required only if the truth of allegations would have a significant impact on the question of what order was made in respect of contact, the prevailing culture was very much of 'playing for safety', and the number of such hearings continued to grow. Since the transfer of many such hearings to the family proceedings court, experience was beginning to show that, for wholly understandable reasons, magistrates were finding it even harder than judges to exercise firm trial management in such cases, though the advent of a PHR before an experienced legal advisor might ameliorate this particular difficulty. The judge's order in this case, which required the father to obtain (and pay for) proper supervised contact, effectively addressed the issues of safety of the mother and children. However, the allegations were serious, and there was a past criminal conviction, and the interim order did not address the issues of emotional harm to the children, one of whom was said to have witnessed violence, and to the mother. This was the essential reason why an order for interim contact should not normally be made in cases involving allegations of domestic violence where such allegations (if true) would be relevant to the issue of whether and if so what contact should be ordered. However, as the judge had seen, some balance had to be drawn. The exceptional course taken by this judge had not been outside the generous breadth of discretion, and the appeal would be dismissed.

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