E, F And G (Interim Child Arrangements)

Factual and Procedural Background

This appeal arises from private law children proceedings between the parents of three girls, referred to as E (aged 11), F (aged 10), and G (aged 8). The parents, originally from Egypt and Pakistan respectively, married in 2011 and separated finally in July 2022 after prior short separations in 2018 and 2020. G was diagnosed with autism spectrum disorder at an early age. Following the final separation, the mother and children moved into a refuge where they remain.

The father initiated proceedings under section 8 of the Children Act 1989 seeking child arrangements orders, prohibited steps orders to prevent removal of the children from the jurisdiction or their hometown, and a specific issue order to allow him to take the children on holiday. Subsequently, he applied for a Female Genital Mutilation Protection Order (FGMPO), alleging a risk that the mother might take the children to Egypt for FGM.

The mother opposed all applications and alleged domestic abuse, including physical abuse of the children and coercive controlling behaviour by the father. She contended that the FGMPO application was an attempt to exert coercive control through litigation. The father denied these allegations and made cross-allegations against the mother, which she denied.

Interim orders were made in March 2023 including FGMPOs and prohibited steps orders preventing removal of the children by either parent, supervised contact for the father, and directions for a Cafcass report and a single joint expert on FGM. The Cafcass officer’s s.7 report in May 2023 detailed complex allegations and concerns about the father’s anger management and the children’s safety and wishes.

The Cafcass officer recommended a fact-finding hearing into the cross-allegations, continued supervised contact, and the father’s attendance at parenting and autism-specific programmes. Directions were given for a fact-finding hearing in October 2023, which was later adjourned to March 2024, with further case management including appointment of a qualified legal representative (QLR) for the father.

The contact arrangements evolved, with supervised contact moving to supported contact in the community, and the Cafcass officer’s addendum report in January 2024 recording generally positive contact but no desire by the children for overnight stays. The children expressed wishes for unsupervised contact, but concerns remained linked to the allegations.

At the March 2024 hearing, the fact-finding hearing was adjourned again due to the absence of a QLR. The judge decided to proceed with contact arrangements allowing unsupervised contact, despite the mother’s objection and application for permission to appeal. The mother appealed the decision to adjourn the fact-finding hearing and to allow unsupervised contact.

Legal Issues Presented

1. Whether the judge was wrong to order unsupervised contact for the father before the fact-finding hearing into allegations of domestic abuse and risk of FGM, contrary to Practice Direction 12J and the welfare checklist under section 1(3) of the Children Act 1989.
2. Whether the judge erred in adjourning the fact-finding hearing on the basis that no qualified legal representative (QLR) was available to conduct the father’s cross-examination, despite the father having prepared questions and the possibility of the court conducting questioning itself.

Arguments of the Parties

Appellant's Arguments (Mother)

• The judge failed to satisfy himself that unsupervised contact would not expose the children or mother to an unmanageable risk of harm as required by Practice Direction 12J paragraph 25.
• The judge wrongly departed from the Cafcass officer’s recommendation for supervised contact without proper explanation.
• The father had not completed recommended parenting and anger management courses and had not given undertakings regarding his conduct during contact.
• The judge gave excessive weight to the children’s wishes and feelings and insufficient weight to the risk of harm and likelihood of abuse.
• The judge erred in adjourning the fact-finding hearing due to lack of a QLR, despite the possibility of the court conducting questioning and the father having prepared questions.
• Allowing adjournment for a QLR would cause undue delay prejudicial to the children’s welfare and could be exploited by alleged perpetrators to delay proceedings.

Respondent's Arguments (Father)

• The children expressed a clear wish to have unsupervised contact (excluding overnight stays) with the father.
• Contact notes showed the contact was a positive experience for the children.
• The father had attended courses addressing parenting and anger management.
• He had complied with undertakings not to denigrate the mother in front of the children.
• He disputed the mother’s allegations and suggested inconsistencies in her conduct.

Table of Precedents Cited

Court's Reasoning and Analysis

Regarding the adjournment of the fact-finding hearing due to the absence of a QLR, the court analysed the statutory scheme under Part 4B of the Matrimonial and Family Proceedings Act 1984 and Practice Direction 3AB. It acknowledged the shortage of QLRs and the guidance in Re Z, which advises that courts should consider various options but generally do not regard the court conducting cross-examination as a satisfactory alternative. The judge’s decision to adjourn to seek a QLR was a case management discretion exercised reasonably, given the complexity of the issues and the importance of fair cross-examination. The court declined to interfere with this decision.

On the issue of unsupervised contact, the court examined the judge’s application of Practice Direction 12J and the welfare checklist under section 1(3) of the Children Act 1989. The judge had expressed scepticism about the need for supervised contact and placed significant weight on the children’s wishes and feelings, concluding that unsupervised contact was appropriate despite the pending fact-finding hearing into serious allegations. The court found this approach inconsistent with the Practice Direction, particularly paragraph 25, which requires the court not to make interim child arrangements orders unless satisfied that there is no unmanageable risk of harm. The judge’s reasoning that contact could be "tested out" under existing proceedings was contrary to the Practice Direction. The court held that without fact-finding, the risk could not be properly assessed and that the judge’s decision to allow unsupervised contact was irrational and premature.

The court also rejected the judge’s apparent discounting of the Cafcass officer’s professional recommendations and cautioned against underestimating the seriousness with which Cafcass treats domestic abuse.

Finally, the court acknowledged the need to avoid further delay but recognized the mother’s legitimate concern about perceived predetermination by the judge and recommended that the fact-finding hearing be promptly re-listed before the local designated family judge for further case management.

Holding and Implications

The court ALLOWED the appeal on ground 1 and DISMISSED the appeal on ground 2.

The order permitting the father to have unsupervised time with the children before the fact-finding hearing was set aside. The court emphasized that unsupervised contact before the resolution of serious allegations of domestic abuse and risk of harm is inconsistent with statutory guidance and the welfare checklist. The fact-finding hearing should proceed without further undue delay, with appropriate case management to address concerns about fair cross-examination and representation.

No new precedent was established; the decision reinforces adherence to existing statutory provisions and Practice Directions regarding child arrangements in the context of domestic abuse allegations and the appointment of qualified legal representatives.