SS v KS

This is an interlocutory appeal from an Order of District Judge Segal sitting in the Principal Registry of the Family Division on 27^th February 2009. For reasons that will appear, I am giving this judgment in open court. On that occasion he was hearing a father’s application for contact to two children namely ‘SS’ (a boy born on 21^st June 2006) and NS (a boy born on 15^th October 2008). It was a fact-finding hearing which the judge was obliged to adjourn part heard and in so doing he made an order for interim supervised contact and gave permission to the father to adduce a further witness statement from his own father.

It was in many ways a sadly unremarkable case. However, it raises an issue which is becoming one of increasing concern at least in London and one which appears to me, as the relevant Family Division Liaison Judge, as being unlikely to diminish. The issue is the propriety or otherwise of making interim contact orders where cases are adjourned for substantial periods of time. The part-heard date in this case was fixed for June 11^th, the better part of four months later. It was recognised that the case might not conclude then. Even if it did, there would then have to be a CAFCASS report and risk assessment with a possible final hearing in October which would be rather more than one year since the directions hearing that effectively launched this applicant. In fact because of the indisposition of the judge the delays will be even longer.

A number of issues (not all related) have brought about this state of affairs. There has been a substantial rise in the number of applications under Part IV of the Children Act 1989 in the aftermath of Baby ‘P’. This was of course something to be expected. However, less expected was a rise in the absolute number of applications in London under Part II of the Act. At the same time, consequent both upon RE L,V,M,H (Contact: Domestic Violence) [2002] 2FLR 334 (CA) and subsequent decisions of that court, and also developing policy in CAFCASS and also the President’s Practice Direction: Residence and Contact Order: Domestic Violence and Harm, (amended 2009), there has been a significant increase in requests (and directions) for fact-finding hearings. It is also the fact that in London increasing numbers of cases require translation services and the number of witnesses has increased where parties come from communities where it is common to live in the extended family. The combination of these factors is testing the family justice system in London to the limit and one inevitable consequence is greater delay.

These cases are not easy to control as to length. Although orders for schedules of allegations and counter-allegations are now common place, many are very long. Where the defence is one of ‘confess and avoid’ selection can be particularly difficult where the court fears that one party is seeking to minimise his role. This case provides a good example. There are 22 allegations; there are limited admissions. Counsel tried to explore selection but the judge was of the view that a fair picture could only be obtained by considering all; hence a significant cause of the case seriously overrunning its estimate.

Whilst the Court of Appeal have always made it clear that it is only where the truth of allegations have a significant impact on the question of what order is made in respect of contact, that a fact-finding hearing is required, the prevailing culture is very much of “playing for safety” and the number (and, for the reasons given, the length) of such hearings continues to grow. Moreover, it was the intention that many of these hearings should be transferred to the Family Proceedings Court on the entirely sound basis that Magistrates were every bit as equipped as judges to deal with fact finding in cases where domestic violence is alleged. Experience is beginning to show, however, that for wholly understandable reasons, Magistrates are finding it harder than judges to exercise firm trial management in these cases, though the advent of a PHR before an experienced legal advisor may ameliorate this particular difficulty.

This is not a desired state of affairs but it is one that is faced in London and one which shows every sign of demand in this area increasing. It is in this context that the learned judge’s decision to order interim contact is to be seen. It is apparent from his remarks that he was motivated to make the order by the delays he anticipated in the case. Absent those delays, it is a fair inference from his comments that he would not have made such an order. He says during his discussions with Counsel: “Is there going to be an application forinterim contact between now and June? It is an awfully long time…for Mr. S to have to wait. On the other hand, you see, to make a contact order now for other than indirect contact would be to fly in the face of the purpose of the hearing.” That comment neatly encapsulates the dilemma with which the judge believed himself confronted.

It is because this dilemma is likely increasingly to present itself in London and because any judge is bound to have instinctive sympathy for both sides of this argument. I thought it proper to reserve judgment and to adjourn it into open court. It must of course be the case that nothing may be reported which might reasonably lead to the identification of either child. Each case must of course be determined on its own facts but this problem is common and seemed worthy of some reflection.

The difficulty conceptually with an interim contact order is that it begs the very question in the proceedings namely whether there should be contact at all. On the other hand the longer the delays, if it be that contact should be ordered, the more inimical to the best interests of the child. That is quite apart from the concern (not suggested, be it said, in this case) that unscrupulous parents could effectively derail contact by the making of false or exaggerated allegations of domestic violence.

In this case the judge’s order was very restrictive amounting as it did to contact for a hour once a fortnight “completely supervised”. I was anxious that his direction for a ‘contact centre’ suggested that he had overlooked the distinction between ‘supported’ and ‘supervised’ contact. However, it is clear that he did not do so as the father recognised that the order requires him to obtain (and pay for) proper supervised contact and it is accepted that the facility he has obtained fulfils that requirement. It follows that the order does effectively address the issues of physical safety of mother and children.

However, the allegations in this case are serious (and there is a past criminal conviction) and it is fairly argued on behalf of the mother that the order does not (and could not) address issues of emotional harm both to the children, one of whom is said to have witnessed violence, and to the mother. That indeed is true and is an issue unlikely to be addressed until the final hearing after a CAFCASS assessment. It is the essential reason why an order for interim contact should not 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 order should be made. That is a matter which was well recognised by this experienced judge.

Nevertheless he saw that even in these circumstances some balance has to be drawn. That he drew it in an unconventional manner is shown by the fact that Pauffley J stayed his order pending an appeal. On the other hand, however, he was dealing with serious and, hitherto, unusual delay and he took the view that an exceptional course was merited. This is an appeal and thus the question for this court is whether the mother can demonstrate that the judge was plainly wrong to draw the balance as he did.

As I have indicated the making of an interim contact order in these circumstances is unusual for the reasons given. Many judges indeed, no doubt with a heavy heart because of the delay, would not have done so and it is difficult to see how such a refusal as a matter of principle could be criticised. On the other hand the learned judge in this case was alert to all the relevant issues, recognised the difficulties of the course that he had in mind and insisted on (and has got) a proposal for fully supervised contact. To say that he was plainly wrong would in reality be to say that it could really never be right to order interim contact in a Re L context where the principle of contact was in issue. It may only rarely be justified, perhaps, but in the context described in this judgment I am unable to say that this decision fell outside the generous breadth of discretion afforded to a trial judge, most particularly where a limited, interim order is under consideration. For those reasons in my judgment this appeal fails and must be dismissed.