Introduction

E, F And G (Interim Child Arrangements) ([2024] EWCA Civ 874) is a significant case adjudicated by the England and Wales Court of Appeal (Civil Division) on July 24, 2024. The case revolves around a contentious dispute between the parents of three young girls—E (11), F (10), and G (8)—following the breakdown of their marriage. Central to the case are serious allegations of domestic abuse, coercive control, and the potential risk of female genital mutilation (FGM) should the children be taken out of the jurisdiction. This commentary delves into the intricacies of the judgment, examining the court's reasoning, the precedents cited, and the broader implications for family law.

Summary of the Judgment

The mother appealed against orders made in private law children proceedings initiated by the father under the Children Act 1989. The father sought a range of orders, including child arrangements and FGM protection orders, citing cultural practices and alleging the mother's potential intent to subject the children to FGM in Egypt. The mother countered with allegations of domestic abuse and coercive control perpetrated by the father.

The Court of Appeal primarily addressed two grounds of appeal:

• Ground 1: The judge erred in allowing unsupervised contact between the father and the children before a fact-finding hearing concluded.
• Ground 2: The judge was incorrect in adjourning the fact-finding hearing due to the unavailability of a Qualified Legal Representative (QLR).

Analysis

Precedents Cited

The judgment extensively referenced Re Z (Prohibition on Cross-examination: No QLR) ([2024] EWFC 22), a pivotal case that established guidelines for the appointment of QLRs in family proceedings. Part 4B of the Matrimonial and Family Proceedings Act 1984, as inserted by the Domestic Abuse Act 2021, was central to the discussion, outlining the statutory scheme for appointing QLRs when cross-examination poses a risk in cases involving domestic abuse.

Additionally, Practice Direction 3AB of the Family Procedure Rules 2010 and Statutory Guidance issued by the Lord Chancellor were instrumental in shaping the court's approach to handling cases lacking a QLR. The Re Z case served as a foundational precedent, guiding the court's deliberations when addressing the unavailability of legal representatives in complex family law disputes.

Legal Reasoning

The Court of Appeal examined whether the lower court erred in its decision-making process, particularly regarding the appointment of a QLR and the transition to unsupervised contact orders. The appellate judges emphasized the following points:

• Appointment of QLRs: The court acknowledged the challenges in securing QLRs due to systemic shortages. However, it underscored that judges retain discretion to manage proceedings appropriately, even if alternative methods of cross-examination are necessary.
• Balancing Delays and Justice: While recognizing that adjournments can cause delays detrimental to child welfare, the court deemed the need for fair trial standards paramount, especially in cases with serious allegations.
• Child Welfare Considerations: The appellate court reiterated that the overriding objective under the Children Act 1989 is to ensure the child’s welfare. This involves thoroughly assessing any potential risks arising from domestic abuse allegations before altering contact arrangements.
• Impact of Cafcass Reports: The court placed significant weight on the recommendations of the Cafcass officer, particularly concerning risks associated with unsupervised contact, reinforcing the importance of professional assessments in such cases.

Ultimately, the appellate court found that the lower judge's decision to permit unsupervised contact prior to resolving the fact-finding hearing was premature and potentially endangering to the children, thereby allowing the appeal to set aside the order.

Impact

This judgment has far-reaching implications for family law, particularly in cases involving domestic abuse and cultural practices that may harm children. The key impacts include:

• Strengthening Safeguards: Courts are reinforced to prioritize child safety by ensuring that all allegations of abuse are thoroughly investigated before making significant alterations to contact arrangements.
• Appointment of QLRs: The ruling highlights the necessity of QLRs in complex cases, pushing for improvements in the system to ensure that such legal representatives are available to prevent delays and safeguard justice.
• Guidance on Interim Arrangements: The case provides clarity on managing interim child arrangements when serious allegations are pending, emphasizing supervised contact as a safer default position.
• Consideration of Professional Assessments: The judgment underscores the critical role of Cafcass reports and similar professional assessments in informing judicial decisions, ensuring that evidence-based recommendations are central to case outcomes.

Legal practitioners must now navigate these reinforced safeguards, ensuring comprehensive evidence evaluation before advocating for changes in contact arrangements, especially in sensitive cases involving potential abuse.

Complex Concepts Simplified

Qualified Legal Representatives (QLRs)

QLRs are specialized lawyers appointed to represent parties in family proceedings where direct cross-examination poses risks, such as in cases of domestic abuse. They ensure that the representation remains fair and that the vulnerable party’s testimony is handled sensitively.

Practice Direction 3AB

This is a set of rules under the Family Procedure Rules 2010 that provides guidance on the appointment of QLRs and the management of cases where one party may be at risk during cross-examination. It delineates the court’s responsibilities in ensuring fair proceedings.

Children Act 1989 – Welfare Checklist

The Welfare Checklist is a statutory guideline under the Children Act 1989 that courts must consider when making decisions about child arrangements. It includes factors such as the child’s wishes and feelings, the nature of the child’s relationship with each parent, and the potential harm from exposure to conflict or abuse.

Female Genital Mutilation Protection Orders (FGMPO)

FGMPOs are legal measures aimed at preventing the practice of female genital mutilation. In family law, they can restrict parents from removing children from the jurisdiction where they might be subjected to FGM, thereby safeguarding their well-being.

CAFCASS Reports

The Children and Family Court Advisory and Support Service (CAFCASS) provides independent reports to the court on behalf of the children involved in family proceedings. These reports assess the child’s needs, the family dynamics, and make recommendations to promote the child’s welfare.

Conclusion

The E, F And G (Interim Child Arrangements) case serves as a pivotal reference in family law, particularly concerning the balance between ensuring timely legal proceedings and safeguarding child welfare amidst serious allegations of abuse. The Court of Appeal's decision underscores the judiciary's commitment to prioritizing the safety and well-being of children over procedural expediency. By setting aside the order for unsupervised contact, the court reinforced the necessity of thorough fact-finding in cases fraught with allegations that could significantly impact a child's life.

This judgment not only reaffirms existing legal principles but also highlights areas needing systemic improvement, such as the availability of QLRs. It serves as a clarion call for legal practitioners and policymakers to enhance support structures ensuring that justice is served without compromising the safety and interests of the most vulnerable—children caught in the crossfire of parental conflicts.