Thursday, February 11, 2016

D (Children): Order for indefinite supervision of contact not wrong in principle

Mr Justice Baker
A summary of D (Children) [2016] EWCA Civ 89 (11 February 2016), a father's application for permission to appeal against an order for supervised contact and a s.91(14) order.

The facts were that the parties married in 2006 and had two children, born in 2006 and 2009. The parties separated in 2010 and were divorced in 2011. In January 2012 the father applied for contact and proceedings have continued pretty well continuously ever since. In the course of those proceedings the mother raised serious allegations of domestic violence against the father and the father made allegations of sexually inappropriate behaviour against the maternal grandfather. These matters were considered at a fact-finding hearing before Miss Recorder Wood QC in September 2012, when she made findings that the father had committed serious acts of domestic violence upon the mother, some in the presence of the children, that he had fabricated allegations against the grandfather of sexually inappropriate behaviour, that he had attempted to coach the older child into making allegations against her grandfather and that he had lied concerning all these matters in court.

Following this, in April 2013 the court made a residence order in favour of the mother, a prohibited steps order preventing the father removing the children from her care, a contact activity direction under s.11B requiring the father to undertake a domestic violence treatment programme provided by Relate, and a further order for indirect contact, including contact via Skype once a week. An application by the father for the immediate resumption of direct contact was refused.

A hearing took place in January 2014, when it was ordered that the father should have contact approximately every six weeks, supervised by an independent social worker. A review hearing then took place in February 2015. Judgment was handed down in April 2015, providing for supervised contact on up to six occasions a year. A s.91(14) order was also made, providing that neither parent should apply for a child arrangements order without the court's leave for a period of 3 years.

The father sought permission to appeal, claiming that the court had been wrong to order that contact should continue to be supervised, and wrong to make the order under s.91(14).

Mr Justice Baker gave the leading judgment in the Court of Appeal. As to the requirement that contact be supervised he held that the recorder was entitled to conclude that contact would have to be supervised for the foreseeable future, in the light of her previous findings against the father, a risk assessment of the father carried out by a psychologist specialising in domestic violence assessment and treatment, and her own evaluation in subsequent hearings that there had been no appreciable change in the father's attitudes or behaviour. He concluded:
"In most cases supervised contact is used as a short-term measure – a stepping stone on the way to unsupervised contact. There are, however, a minority of cases where the risks to the children are such that contact must remain supervised indefinitely. In such cases, an order for indefinite supervision of contact is not wrong in principle and the recorder was entitled to conclude that such a course was warranted on the facts of this case. An appeal against her order that contact should be professionally supervised would therefore have no prospect of success and I would therefore refuse permission to appeal."
As to the s.91(14) order Mr Justice Baker found that the order "was not draconian but, rather, measured, proportionate, and fully justified", given the history of the proceedings and the recorder's finding that the mother had become "worn down and worn out by the whole situation."

Accordingly, the father was refused permission to appeal.

Lady Justice Black and Lord Justice Patten gave concurring judgments.

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