A v R (Appeal: Unsupervised Contact Prior to Determination of Allegations: PD12J) [2025] EWFC 503 (B)

Ref. SD24P20326[2025] EWFC 503 (B)
IN THE FAMILY COURT
SITTING AT HASTINGS
Before HIS HONOUR JUDGE TALBOTT
IN THE MATTER OF
The Mother “A” (Applicant)
-v-
The Father “R” (Respondent)
MS CIBOROWSKA, of counsel, appeared on behalf of the Applicant
THE RESPONDENT appeared in person
A v R (Appeal: Unsupervised Contact Prior to Determination of Allegations: PD12J)
APPROVED JUDGMENT
22 nd JULY 2025
__________________
WARNING: This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
HIS HONOUR JUDGE TALBOTT:
Introduction
Between
AClaimantR (Appeal: Unsupervised Contact Prior to Determination of Allegations: PD12J)DefendantDate 2025-07-22
[1]I will direct that a transcript is produced of this judgment at public expense. As this judgment may well be published, subject to any further submissions I hear on the point, I shall deliver it in a way which reduces the likelihood of identification of the child.[2]In the proceedings overall, the court is concerned with the welfare of a young child. Both parents have made applications at different points in time. Both parents seek different orders relating to whom the child lives with and how they spend time with the other parent. The matter is listed before me today in respect of the mother’s application for permission to appeal out of time, permission to appeal, and also, if granted, an application to appeal a decision made by District Judge Worthley at a hearing before the learned judge on 24 April 2025.

The History

[3]The history of these proceedings can be taken briefly. The first application in time was the mother’s application for a prohibited steps order to prohibit the father from removing the child from school, from her care, and from the jurisdiction. The basis of the application, as it was at that point in time, was as per the mother’s application, that the father had been having supervised contact with the child and had, it was alleged, made a threat or threats to remove the child from their school during that contact. The mother, within her application, set out in that initial application form why it was she said that unsupervised contact with the father would not be in the child’s welfare best interest. She alleges that the father abuses alcohol and acts aggressively, has acted in such a way previously, and that there was a risk of removal from the jurisdiction. The initial application was followed up around two weeks later by the mother by way of a C1A form setting out the basis on which the allegations of alleged harm both to her and the child were made. On 1 October, the same day that that C1A form was submitted, District Judge Sullivan listed the matter to be heard without notice to the father, and that hearing took place the following day on 2 October 2024.[4]At that without notice hearing, District Judge Melville-Walker determined the matter must be heard without notice and determined it was necessary and proportionate to make an order without notice to the father that the child lives with their mother and also made the prohibited steps order sought, preventing the father from removing the child from the jurisdiction or from the mother’s care, or for applying for any other passports other than that currently held by the child. The matter was listed for a First Hearing Dispute Resolution Appointment on 5 November 2024.[5]The father, having been subsequently notified of the proceedings and the order of District Judge Melville-Walker, made his own application by way of a C100 form. Within it setting out that he was applying for a child arrangements order in order to spend time with his child and also a prohibited steps order to prevent the mother from relocating with their child to a different part of this jurisdiction.[6]The First Hearing Dispute Resolution Appointment was listed before the magistrates on 5 November 2024. At that hearing they reallocated the applications to a District Judge and consolidated the applications from both parents. The matter was relisted on 11 November 2024 before a district judge.[7]On 11 November, the matter came before DJ Worthley for the first time. I have the benefit of the order made by DJ Worthley on that occasion. The order sets out how the court was, at that stage, satisfied that practice direction 12J was engaged on the basis of the allegations of domestic abuse which were clearly part of the mother’s case, and within the recitals to the order generated after that hearing,

the judge noted that:

“Domestic abuse has been raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, having regard to practice direction 12J. Notwithstanding the allegation of domestic abuse, the court has decided, having regard to practice direction 12J, that a fact-finding hearing is not needed at this stage. For the avoidance of doubt, as is necessary, this will remain under review throughout, and the court is satisfied, having regard to practice direction 12J, that the arrangements for the child made by this order, including any ‘spend time with’ arrangements, protect the safety and wellbeing of the child and the parent with whom they are living.”
[8]As part of the order made by DJ Worthley on 11 November, the judge directed that the child should live with the mother and that the mother must ensure that the child spent time with their father fortnightly in the following way:
“for up to two hours, professionally supervised in a contact centre, the costs of which were to be met by the father.”
[9]As a condition of that contact, the District Judge determined that the father must complete an instant breathalyser alcohol test before each contact at the contact centre, and that the contact should not occur if the test was positive for alcohol at all immediately prior to the session. The District Judge directed that contact should be suspended if on two occasions the father failed the breathalyser test, contact could not take place because of the father’s behaviour more generally, or the father missed the contact. There was also a direction made for the child to have video calls with their father three days a week on the first week, two days a week on the second week for a short period of time, to alternate on that two-weekly cycle.[10]The prohibited steps order that had been previously made by DJ Melville-Walker on 2 October on an ex parte basis was varied to the extent that that the father was prohibited from removing the child from the care and control of the mother, or any person or institution, including any school, to whom she had entrusted their care, nor must he instruct or encourage anyone else to do so other than for the purpose of contact expressly agreed in writing or expressly ordered by the court, in which case the child must be returned promptly at the end of each such contact period.[11]The District Judge also directed at paragraph 10 of the 11 November 2024[12]Before going on, within paragraph 12 of that order under the heading “Section 7 Report”, to direct the following:
“Cafcass must send to the court and the other parties a report under section 7 of the Children Act dealing with the following: (a) With whom the child should live, including a joint “lives with” order; (b) Whether the child should see the other parent; (c) How often and for how long the child should see the other parent; (d) The wishes and feelings of the child so far as they can be ascertained; (e) Whether or not it appears that the child has suffered or is at risk of suffering any harm; (f) Whether, in light of the risks raised and the mitigation put in place by the court to safeguard and facilitate contact, whether a fact-finding hearing is necessary - fact-finding hearing is needed; (g) If so, an analysis into why a fact find is necessary and in the child’s best interest when determining final arrangements, and what further steps would follow any positive findings additional to the steps already ordered today; (h) Recommendations in respect of arrangements for the child, including step arrangements, with a view to a final order if possible.”
[13]The Cafcass section 7 report which was produced as a result was filed on 17 March 2025. Within that 17-page report, the very experienced Cafcass court advisor set out the enquiries that had been made, and in line with the direction of the District Judge, set about addressing each of the specific questions that were asked of Cafcass by way of the direction within the 11 November 2024 order. The very experienced Cafcass officer concluded at paragraph 54 of the Cafcass section 7 report:
“At present, the arrangements for the child to spend time with their father are supervised at a contact centre. This does mitigate the risks for them, in that the father does currently undergo alcohol breathalyser tests prior to the arrangements commencing, and the supervisor is able to ensure that the child is kept safe from any potential harm and potential conflict between the parents.”
Before going on to say:
“Any progression to the arrangements would need to be made with caution to ensure that the reported risks are no longer a factor which could increase the risk of harm to the child. The mother has made reports of domestic abuse perpetrated by the father. This has included coercive controlling behaviour; stalking and harassment; psychological, physical, sexual and financial abuse. The mother reports that the coercive controlling behaviours, as well as the stalking and harassment, have continued following separation.”
[14]The Cafcass officer acknowledged later in the report that the father:
“Vehemently denies the reports made by the mother, and has made counter-reports that she is purposefully obstructing the arrangements for the child to spend time with him, and suggests that the mother’s ultimate goal is to relocate to a different area of the jurisdiction, and this is why the reports are being made by her to the police.”
[15]Having been directed by the District Judge to specifically address the need for a fact-finding hearing or otherwise, the Cafcass officer did exactly that, and within the “Recommendations” heading says as follows, paragraph 71:
“It is respectfully recommended to the court that a fact-finding hearing is necessary and proportionate within these proceedings, and that it is listed at the earliest opportunity. It is recommended that the interim arrangements for the child to spend time with their father face-to-face remain as they currently are, with supervised contact at a contact centre once a fortnight for two hours. It is recommended that the video calls either do not continue or that an agreed third party supervises these. The father to continue to provide a breathalyser test prior to each face-to-face contact taking place.”
[16]The CAFCASS officer went on to make further recommendations in terms of hair strand testing from the father and the completion by the father of both modules of the Alternatives to Violence programme and for evidence of such to be provided to both the court and to Cafcass of this.[17]I pause at this point to recognise the unusual nature of the direction made by the District Judge on 11 November for Cafcass to produce a section 7 report which included an assessment of whether there should be a fact-finding hearing or not. The obvious difficulty in taking that particular course is that it places on Cafcass a burden which, applying practice direction 12J properly, should be on the court. I remind myself of what practice direction 12J says in respect of reports under section 7. At paragraph 21 of Practice Direction 12J it is said that:
“Subject to sub-paragraph (3), sub-paragraph (2) applies in any case where: (a) a child being a victim of domestic abuse; or (b) a risk of harm to a child resulting from domestic abuse, is raised as an issue.” is raised as an issue.”
[18]Paragraph 21, sub-paragraph (2) states:
“In such a case, the court should consider directing a report on the question of contact, or any other matters relating to the welfare of the child, including matters relating to whether a section 91(14) order would be appropriate (see practice direction 12Q) be prepared under section 7 of the Children Act 1989 by an officer of Cafcass or local authority officer if appropriate.”
[19]And sub-section (3) of paragraph 21 of practice direction 12J states that at:
“Sub-paragraph (2) does not apply where the court is satisfied it is not necessary to order the preparation of such a report in order to safeguard the children’s interest.”
[20]Paragraph 22 of practice direction 12J then states as follows:
“If the court directs that there shall be a fact-finding hearing on the issue of domestic abuse, the court will not usually request a section 7 report until after that hearing. In that event, the court should direct that any judgment is provided to Cafcass; if there is no transcribed judgment, an agreed list of findings should be provided, as set out within paragraph 29.”
[21]The rationale for the usual approach, as set out within practice direction 12J paragraph 22, is clear. When a court has determined that a fact-finding hearing is necessary, it has been decided that the allegations which are made, or some of them, need to be determined prior to there being an adequate and sufficient basis on which to properly assess the risks or otherwise that would be posed to a child through the implementation of a particular welfare decision. In this case, that important decision for the child is whether they spend time on an unsupervised basis with their father.[22]Whilst the point is not subject to this appeal, nor am I in any way seeking to suggest that there is a blanket rule that there is no situation in which a section 7 report should be ordered in which Cafcass are asked to comment on the need for a fact finding hearing, it appears to me, applying direction PD 12J, to be a very unusual course. There is very good reason why such a question is not posed to Cafcass within the extensive Section 7 Report direction within the Standard Order for a FHDRA when issues of domestic abuse are raised.[23]I am satisfied that directing Cafcass to comment on the need or otherwise for a fact-finding hearing likely ensured that the District Judge was placed in difficulty in then applying PD 12J properly at the hearing subsequent to the filing of the section 7 report when determining whether or not it was necessary to hold a fact-finding hearing. Put simply, the decision as to whether to hold a fact-finding hearing or not was one which should have been taken prior to the direction of the s7 report. Indeed, as per the recitals to the order directing the s7 report, the District Judge was satisfied that a fact-finding hearing “was not necessary”. It was therefore strange to direct Cafcass to comment upon the need or otherwise for such a hearing. The decision as to whether to determine allegations of domestic abuse made by one parent against another will always be one for the judge applying the principles encapsulated within PD 12J. Of course, as PD 12J para 17.1 makes clear, one of the factors the court should consider is the views of the parties and of Cafcass. However, it appears to me that the best way for those views to be obtained is through the Safeguarding letter provided by Cafcass, or a subsequent short piece of additional work, as opposed to the directing a full s7 report and asking Cafcass to comment on this alongside the other welfare matters.[24]The hearing subsequent to the finding of the section 7 report took place again before District Judge Worthley on 22 April 2025. Both the mother and the father were represented, the mother represented by different solicitors and different counsel to those who appear today. At the hearing on 22 April 2025, the District Judge determined that there was now the need for a fact-finding hearing to take place and directed that one be listed in November 2025 before a different District Judge, with a pre-hearing review taking place a couple of months beforehand.[25]The District Judge determined that there had not been the opportunity for the mother to set out in statement form the full nature of her allegations, nor an opportunity for the father to respond to those allegations. The District Judge was therefore working on the basis of the initial application which set out the nature of the allegations made by the mother against the father. Despite this lack of evidence and directions for it to be filed, the District Judge nonetheless went on to direct that a fact-finding hearing was necessary to resolve the disputed welfare issues for the child.[26]Having determined that it was necessary to hold a fact-finding hearing in respect of the allegations made by the mother, broadly characterised as allegations of controlling and coercive behaviour, including aggressive behaviour, verbal abuse and sexual assault, the District Judge then went on to direct that there should be a progression of the supervised contact which had previously been ordered. The District Judge directed that contact should progress to unsupervised contact in the community with handovers to still take place at a contact centre. It is against the decision to allow unsupervised contact between the child and the father that the mother seeks to appeal.[27]I have the benefit of the transcript of the whole of the hearing which took place on 22 April 2025 before the District Judge. It is essential that I have that transcript. No other aspect of DJ Worthley’s order on that date at that hearing are subject to the application for permission to appeal, solely the decision to allow unsupervised contact.

Grounds of Appeal

[28]In the broadest of terms, the appellant’s case is that the District Judge erred in directing that contact should progress to unsupervised contact because in doing so the learned judge failed to properly apply Practice Direction 12J, and in particular, failed to properly address the clear guidance given from paragraph 25 onwards of practice direction 12J under the heading “Interim Orders Before Determination of Relevant Facts”.[29]In a nutshell, it is said by the appellant that the decision to hold a fact-finding hearing in a private law children matter is a significant decision and that, having determined that it was necessary in a particular case to determine the allegations made, the judge should have exercised greater caution in analysing the evidence, such as it was at that point in time, before going on to conclude that unsupervised contact was safe and in the welfare best interests of the child notwithstanding the undetermined allegations.[30]The respondent father says that the District Judge was entirely justified in directing both a fact-finding hearing and that contact should progress from supervised to unsupervised despite the undetermined allegations. The father says that the appellant has demonstrated no error on the part of the district judge, nor any procedural irregularity leading to unfairness, and that ultimately, the mother simply dislikes the decision the District Judge made and is trying to go behind it without any proper basis to do so.[31]The father also points to the fact that the application for permission to appeal was only made on 6 June 2025 and that the order of the District Judge was made on 22 April. Therefore, the father says that the delay beyond the 21 days applicable to any application for permission to appeal against a decision of this sort - it being a welfare decision, not a case management decision – is unjustified and that the court should not entertain the application for that reason also.[32]I have considered very carefully the very helpful skeleton arguments provided on behalf of both the appellant mother by Ms Ciborowska of counsel (who did not appear below) and by counsel who did appear below, Mr Sharpe, for the respondent father. I am very grateful to both for their extremely helpful and focused written skeleton arguments. I have also had the benefit at this hearing of hearing from Ms Ciborowska directly in oral submissions and also from the father himself directly. Despite being a litigant-in-person, he has addressed me in an extremely respectful and helpful way, focusing on the issues on which I needed addressing. I am very grateful to him for that.

The Law

[33]I have to consider whether I should grant permission to appeal as the application relates to the decision of a District Judge. Because the application for permission was made out of time, I also have to consider the application for permission out of time. In considering whether to extend the time to appeal, I have to carry out effectively a three-stage analysis, the first being to identify and consider the seriousness of the failure to comply with the 21-day time limit, the second is to consider the reasons for that default, and the third is to consider all the circumstances of the case, in which the child’s interests remain a highly relevant matter. Of course, those factors may well pull in different directions when it comes to non-compliance with the Family Procedure Rules, and I have had regard to the underlying merits of the proposed appeal in considering the issue of whether to extend the time limit.[34]I remind myself that only in exceptional cases should permission be given to appeal out of time if that period is particularly significant, but that even minor extensions should not be routinely granted. There must be a good reason put forward on which to justify the extension of time in respect of such an application.[35]If I grant permission to appeal out of time, of course, I consider whether permission more generally is granted, and also, if so, the application to appeal itself. In terms of permission, the test I apply is straightforward: I should only give permission if I am satisfied that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard. I remind myself that “has a real prospect of success,” means the prospect of success has to be realistic as opposed to be fanciful, but it is not a strict requirement that success should therefore be more likely than not.[36]In terms of any substantive appeal, I will only allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court. If the appeal is allowed, I have all of the powers of the lower court and may affirm, set aside or vary the lower court’s order or judgment, or refer any application or issue for determination by a lower court, order a new hearing, and, of course, make any cost orders as appropriate.[37]Judges in the Family Court on appeal will always be loath to interfere with decisions made by judges in the court below who have the real benefit of having heard at first instance the arguments before them. I also must recognise that District Judges, in particular, often have extremely busy lists and are asked with regularity to make incredibly significant decisions in the multiple private law children cases that they have listed before them on any given day. I am in no way blind to the pressures that this places on District Judges hearing matters such as this at first instance.[38]It is in many ways difficult to think of a more significant decision at an interim stage in a private children case than whether or not to hold a fact-find hearing and the decisions regarding contact taken subsequent to that decision. There is a raft of authority and guidance now helpfully in place to assist judges in the Family Court in addressing that very issue. Of course, Practice Direction 12J is the starting point, and the court also has the benefit of numerous judgments in cases such as Re H-N and Others (Children) [2021] EWCA Civ 448, giving guidance in respect of which all of those in the Family Court are familiar in respect of the decision as to whether to hold a fact-finding hearing or not, and, of course, the benefit of the judgment of the Court of Appeal in K v K [2022] EWCA Civ 468.[39]Since those seminal authorities, the High Court have provided a number of very helpful judgments setting out and reaffirming the test to be applied in determining whether to hold a fact-find hearing or not. By way of example, Cobb J, as he then was, in the case of A v K (Appeal: Fact Finding PD12J) [2024] EWHC 1981 (Fam).[40]It is important to recognise that the decision to conduct a fact-finding hearing in private law children proceedings is not merely a tick-box exercise. It is a very specific and important decision which can only properly be made following a proper analysis of the necessity or otherwise of holding such a hearing. I must, of course, consider that District Judges in particular are regularly tasked with making these really important decisions with little time to either prepare for the hearings, or indeed during the hearing itself, to properly analyse and consider as they would likely wish, to the extent that they would likely wish, the competing arguments for and against.

Discussion

[41]I have the benefit of the transcript of the entire hearing before the District Judge which took place in April 2025. In light of the way in which the hearing progressed, the transcript of the whole hearing had to be read. Due to the nature of the hearing before the District Judge, the judgment is somewhat interspersed with the submissions made by counsel throughout the hearing. At some points, the District Judge effectively delivered a “mini-judgment” and then invited submissions in response to it. There is nothing fundamentally flawed or inherently wrong in that approach, albeit it does make discerning judicial reasoning significantly more difficult when there is not a short judgment delivered at the end of a hearing uninterrupted by counsel’s submissions.[42]Having considered the transcript of the whole hearing, it is abundantly clear to me that the District Judge wrestled significantly with the issue as to whether to hold a fact-finding hearing or not in light of the allegations of domestic abuse that are made by the mother in this case. I remind myself of the allegations such as they were known at the time of the decision taken by the District Judge.[43]The mother, in her initial statement from September 2024 filed in support of her application for a prohibited steps order, set out the following:
“After the birth of our child, the father became extremely manipulative towards me, preventing me from leaving the house without him. He would isolate me from my friends and my family by not allowing me to go to my family when they needed me. Further, the father would often threaten to hire an unknown babysitter to look after the child, knowing full well I did not want this to happen. I felt that it was a clear tactic to manipulate me and isolate me further from being able to socialise. Frequently, on holiday, the father would drink to excess, and on two separate occasions ended up being arrested after not going to bed when I did and deciding to stay out drinking. I suffer from seizures and stress is a trigger for me; on one of the holidays, due to the respondent father’s behaviour, I had a seizure on the ferry back. In May 2023 the father drank to excess and became verbally abusive and aggressive. I had to contact the police for our child’s and my own safety. In July 2023, my health deteriorated and I had major brain surgery followed by a chemotherapy, and at this time the father’s behaviour became progressively worse. He would belittle me throughout my treatment, emotionally manipulate me and make me financially reliant on him. The respondent would forcefully kiss and touch me during my hospital appointments, which made me feel uncomfortable. I would ask him to stop, but he would not listen. He would swear loudly and be aggressive in front of the other patients in my room, and I had to take the decision to attend my appointments on my own. In December 2023, after I had chemotherapy treatment, the father would not leave me alone sexually. I was exhausted both physically and emotionally, and the respondent continuously pushed to have sexual intercourse with me. There was one occasion when the respondent became aggressive towards the child while pushing him to bed. He was shouting at them and threw a plastic cup, and in August 2024 the father was verbally abusive and aggressive towards me. He had been drinking the whole day, and so I left the property with our child to protect us from further abuse and aggression. The father then harassed me with incessant calls and messages. I asked him only to contact me via email, but he did not and was messaging me throughout the day and night, and then on 12 and 13 August 2024 father continued to harass and intimidate me by trying to frequently contact me via video calls, messages and phone calls. The father sent a video of himself in which he appears to poison one of my plants.”
[44]I make abundantly clear that the father disputes every aspect of those allegations of abusive behaviour. It is not my role to determine those allegations at this stage. Indeed, it is important to note it also was not the role of District Judge Worthley to determine the allegations at the hearing before him in April 2025. The role of any Judge when considering the necessity or otherwise to determine allegations of domestic abuse is to determine whether it was necessary to determine those allegations or not within the proceedings. Knowing what the allegations were, the District Judge decided that a separate fact-finding hearing was necessary to determine the welfare dispute between the parties. The District Judge was aware of the nature of the allegations and also, importantly, that the main welfare dispute was whether the father should have unsupervised contact with the child. The mother said he should not, the father said that he should. Knowing this, the District Judge determined that it was necessary to hold a fact-finding hearing separate to determining the welfare decisions for the child.[45]Throughout the hearing, the District Judge referred on no less than 17 occasions to Practice Direction 12J. Therefore, I am in no doubt that the District Judge had firmly in mind the Practice Direction itself and the guidance therein as to whether to direct a hearing at which an examination of the allegations of domestic abuse was to take place, and if so, whether it should be separate to any welfare hearing or composite.[46]The reality is, when one considers Practice Direction 12J from paragraph 16 onwards under the heading “Directions for a Fact-Finding Hearing”, it is clear that the learned judge was aware of the guidance, and having applied it, determined that a fact-finding hearing was necessary. I remind myself of what is said in respect of directions for a fact-finding hearing at paragraph 16 PD 12J:
“The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse: (a) In order to provide a factual basis for any welfare report or the assessment of the factors as set out within paragraphs 36 and 37 below.”
[47]Paragraphs 36 and 37 list the factors to be taken into account by a court when determining whether to make child arrangements orders in any case in which domestic abuse is either accepted or has been found to have occurred post-fact finding.[48]PD 12J para 16(b) – (d) sets out another potential basis of such necessity to determine allegations of domestic abuse, where it is necessary, “(b) In order to provide a basis for an accurate assessment of risk; (c) Before it can consider any final welfare-based orders in relation to child arrangements; or (d) Before it considers the need for domestic abuse intervention.”[49]Paragraph 17 of practice direction 12J states that:
“In determining whether it is necessary to conduct a fact-finding hearing, the court should consider: (a) The views of the parties and Cafcass; (b) Whether there are admissions by a party which provide a sufficient factual basis on which to proceed; (c) If a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed; (d) Whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed; (e) Whether the factors set out in paragraphs 36 and 37,” to which I have already referred, “can be determined without a fact-finding hearing; (f) The nature of the evidence required to resolve disputed allegations; (g) Whether the nature and extent of the allegations, if proved, would be relevant to the issues before the court; and (h) Whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.”
[50]As it is emphasised on behalf of the father by Mr Sharpe in his well-formulated and persuasive written skeleton argument, the District Judge referred to Practice Direction 12J on numerous occasions throughout the hearing. Having done so, the District Judge then went on to conclude, having clearly considered practice direction 12J, that a fact-finding hearing was necessary. I note the examples cited on behalf of the father where it is understandably emphasised that the judge, in the course of submissions, said that he:
“Found the decision as to whether to hold a fact-finding hearing a very, very finely balanced decision.”
[51]It is highlighted, understandably, by the father that the District Judge, at one point during the hearing, expressed that he “did not want a fact find,” before going on to comment more generally about fact-finding in the present case and the present allegations:
“The fact find for which most of them [the allegations] really would make limited to no difference to the final outcome.”
[52]Whilst it is right that those comments were made by the District Judge, nonetheless the ultimate conclusion he reached was that a fact finding hearing was necessary and that it was necessary to conduct that fact-finding hearing separately to the welfare hearing.[53]It is submitted by the father that the District Judge made a number of comments throughout the hearing which we indicative of a view that a fact-finding hearing was not necessary. For example, when the District Judge commented:
“I am not convinced that it [the fact-finding hearing] is good for the child to do this. I am not convinced this is good for the child’s mother to do this, but I have to conduct that 12J exercise.”
[54]The comment “I am not convinced it is good for the child to do this” is difficult to reconcile with the ultimate decision taken that such a hearing was necessary in order to make welfare decisions in the child’s welfare best interests and was a proportionate way forward in all the circumstances. Nonetheless, on the face of it, the comments made by the District Judge throughout the hearing regarding fact-finding may well have led to the parties to expect him to conclude that it was not necessary to determine the allegations of abuse made by the mother. However, that was not the conclusion he ultimately reached. The fact that the District Judge expressed such clear reservations during the hearing as to the necessity to determine the allegations is irrelevant to the decisions taken subsequently in respect of contact in my judgement. In questioning whether a fact-finding hearing was necessary, and querying what it would actually add for the benefit of the child, it seems to me that the District Judge was doing no more than Cobb J (as he then was) set out within para 59 in A v K:
“Therefore, as appropriate, judges in the Family Court when presented with a private law case involving allegations of domestic abuse where the issue of fact-finding arises, should press the parties or their advocates, as both DDJ Morris and this Judge properly did, by asking them directly at a case management, or later: “why do I need to determine this issue / these issues in this particular case?”; “what difference would it make to the welfare decision/outcome in this case in respect of this child even if I were to find the allegation proved?” ”
[55]I am entirely clear that the District Judge did conduct the necessary PD 12J compliant exercise when determining whether or not it was necessary to determine the allegations of domestic abuse made by the mother against the father. In doing so, he determined that it was necessary to consider the allegations made in respect of controlling and coercive behaviour. In that sense, the District Judge was clearly correct, stating as he did: "I am not opening it up for findings of historic additional allegations. It is only on effectively what is said to be controlling and coercive behaviour during the currency of the relationship.[56]In that, it is clear that the District Judge rightly focused in headline form on the allegations of controlling and coercive behaviour in ruling out the need to determine any allegations which fell outside of that. That was clearly a decision which he was entitled to make, and one, in fact, which is not challenged. Ultimately the determination made was that a fact-finding hearing was necessary to consider the allegations of controlling and coercive behaviour made by the mother against the father. It is against that background that I have to consider the applications made now by the mother in respect of the subsequent decision to direct unsupervised contact.[57]As I have already set out, the mother’s case in the simplest of terms is that having determined that a fact-finding hearing was necessary, the determination of the District Judge that unsupervised contact should take place was so flawed as to be wrong.[58]That is a submission with which I agree. I shall now set out why I reach that conclusion[59]Whilst it is right that there is no blanket rule established by any of the authorities placed before me on behalf of the mother, including in a matter of TG (A Child) [2013] EWCA Civ 5, Re D (A Child) (Appeal out of time) [2020] EWHC 1167 (Fam) or GMv VB [2025] EWHC 857 (Fam), that if a fact-finding hearing is directed then there must not be unsupervised contact, it is clearly the case that it would be the exception rather than the rule that unsupervised contact would nonetheless be ordered when a court has determined that allegations of domestically abusive and/or controlling and/or coercive behaviour need to be determined before the welfare disputes between the parents can be resolved. That must particularly be the case where the ultimate welfare decision is whether there should be unsupervised contact or not. Because, for the reasons I have set out, it is only in cases where it is necessary to determine such allegations to make significant welfare decisions for children on a safe basis and to provide an accurate basis on which to assess risks for a child that the fact-finding hearing would be directed in any event.[60]In the circumstances of this case, bearing in mind the allegations that were made, I am entirely satisfied that the District Judge did fall into error and was wrong to direct that contact could safely progress to unsupervised contact in the community. I have considered carefully what it was that the District Judge said about professional contact. Within the course of the hearing, the District Judge said as follows:
“I am thinking about public law settings. If this were a public law case, it would be nowhere near a level of having professional intervention, professional supervision or support. That has to be understood, it has to be, so there will not be professional supervision because, taking at its highest, there is no unmanageable risk of harm here. The risk of harm is from sobriety and the risk of harm is from the parental relationship. There will need to be staggered handovers because it is being directed, as it is, the court will not need messaging via the parenting app, or while the parties remain legally represented, the communications can be restricted to inter-party solicitors’ correspondence.”
[61]The conclusion reached by the District Judge, despite that clear assertion that there would not be professional supervision, was expressed in many different ways throughout the hearing and prior to the conclusion of it. That in itself is not indicative that the District Judge made up his mind in respect of contact before hearing all of the argument. It is clear from reading the transcript of the hearing as a whole that all of the submissions that were necessary for the judge to hear in respect of the issue had been heard prior to the judge expressing himself in such clear terms as to why there would not be professional supervision of contact any longer. In saying “the risk of harm is from sobriety and the risk of harm is from the paternal relationship” the District judge acknowledged that the risk of harm to be assessed was not simply as a result of the father’s problematic alcohol use. The phrase “parental relationship” must be viewed in the context of the allegations made by the mother, which the District Judge concluded needed to be determined at a separate fact-finding hearing, that the “paternal relationship” was one characterised by controlling and coercive behaviour. The phrase “parental relationship” may, in a general sense, imply that any risk to the child was from a generally acrimonious relationship between the parents. However, it the context of these proceedings and the allegations which fell to be determined, it cannot be understood in that sense.[62]I must also view the decision made by the District Judge to direct unsupervised contact in the context of what was said about Practice Direction 12J by the Judge in the hearing. It was mentioned, as I have already set out, no less than 17 times by the District Judge during the course of the hearing. The judge said this:
“I am incredibly concerned how this case is being approached, and it is this attempt to the level of needing to police behaviour; again, these are very intrusive levels being sought to effectively ask the Family Court to parent. One only needs to look at the AG contact centre referrals and see what healthy, positive parenting contact there is. I only need to look at what Cafcass says in terms of how much the child loves being with his dad and saying, ‘I would like to have a stranger present for hours at a time to supervise, to monitor, to police what he says.’ That is not how family life works; that is not. There is no unmanageable risk here within 12J. It is not an unmanageable risk situation. The repeated pushing back and pushing back and pushing back and pushing back, this case has the hallmarks of something that is going to be caught in court for years. It will just be so disruptive, because there needs to be a way - you know, I am more than willing on an interim basis to effectively try to firewall the communication between the parents and not use the parenting app; there will be no need. I do not want there to be any messages that could be perceived as or are threatening or intimidation, or anything like that. So, it is effectively you are trying to reduce almost completely any contact between the child’s parents, ensure strict sobriety, ensure that he just has the normal time with his parents, because there is nothing here. Even a parent being angry in the moment or throwing an object across the room, these things happen in households up and down the country every day. They are not reasons the court then has professional supervision.”
[63]Having said all of that, the District Judge then went on to direct that a separate fact-finding hearing was necessary to determine the allegations of significant domestic abuse made by the mother against the father.[64]I am entirely satisfied that the rationale of the District Judge in directing unsupervised contact was fundamentally flawed. Having determined, as he did, that a fact-finding hearing was necessary in light of the allegations of controlling and coercive behaviour made by the mother to determine the welfare disputes between the parents, the District Judge effectively went on to determine that there was no risk to the child of unsupervised contact immediately taking place whether the allegations were true or not. That is the contradiction which it is, in my judgment, impossible to reconcile.[65]Had the District Judge determined that, despite their seriousness, the allegations did not need to be determined in the context of this particular case it may well be that I reached a different conclusion in respect of his decision regarding unsupervised contact prior to the determination of the allegations. But, having conducted what was clearly a proper Practice Direction 12J exercise in respect of whether to hold a fact find or not, what the learned Judge did not then go on to do, in my judgment, was conduct a proper, balanced and thorough Practice Direction 12J compliant assessment as to whether contact in the interim could take place in a safe way in line with the child’s welfare best interests, and if so, how that should look.[66]Whilst Practice Direction 12J itself was mentioned 17 times by the District Judge, it was not, in particular, mentioned in the context of paragraphs 25 to 27, the part titled “Interim Orders Before Determination of Relevant Facts”. The phrase “relevant facts” is incredibly important because “relevant facts” in that context relate to facts which the court has determined are necessary to determine in order to provide a proper basis on which to make safe welfare decisions for a child.[67]Paragraph 25 of Practice Direction 12J states:
“Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it in the interests of the child to do so, and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind in particular the definition of ‘victim of domestic abuse’ and the impact which domestic abuse against a parent can have on the emotional wellbeing of the child, the safety of the other parent and the need to protect against domestic abuse).”
[68]Paragraph 26 states:
“In deciding any interim child arrangements question, the court should: (a) Take into account the matters set out in section 1(3) of the Children Act … (‘the welfare checklist’) … and (b) Give particular consideration to the likely effect on the child, and on the care given to the child by the parent who has made the allegation of domestic abuse, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and that parent is likely to suffer as a consequence of making or declining to make an order.”
[69]Paragraph 27 then states:
“Where the court is considering whether to make an order for interim contact, it should in addition consider: (a) The arrangements required to ensure, as far as possible, that any risk of harm to the child and the parent who is at any time caring for the child is minimised, and that the safety of the child and the parties is secured, and in particular: (i) Whether contact should be supervised and supported, and if so, where and by whom; (ii) The availability of appropriate facilities for that purpose; (b) If direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact; and (c) Whether contact will be beneficial for the child.”
[70]It is clear from considering the transcript of the hearing on 22 April of this year that the District Judge did consider, in his words, whether this was “an unmanageable risk case” or not. He determined it was not an “unmanageable risk case” and therefore directed unsupervised contact.[71]Where the District Judge fell into significant error, in my judgment, is that having determined that a fact-finding hearing was necessary and having therefore to have regard to Practice Direction 12J paragraphs 25 to 27, the District Judge focused exclusively on the concept of “unmanageable risk” and determined that the risk was not “unmanageable”. The District Judge then erroneously jumped to the conclusion on that basis that unsupervised contact, despite the undetermined allegations of controlling and coercive behaviour, was now in the welfare best interests of the child. The District Judge did not adequately consider what risk, if any, such unsupervised contact posed to the mother or the child. Bearing in mind that the District Judge had already determined that the allegations of abuse were significant enough to warrant determination at a separate fact-finding hearing because of their potential impact on the assessment of risk necessary as part of an ultimate wider welfare analysis, it is difficult to understand how it was not necessary to determine those allegations before making the very significant decision to remove the supervision from the contact.[72]In some ways, it is unimportant what led to that error occurring. I am satisfied entirely that it was an error which came about as a result of insufficient consideration of the impact on both the mother and the child of the removal of supervision until those allegations were determined.However, it appears to me that there are a number of reasons in this case why the District Judge was placed in a difficult and entirely unenviable position at the April hearing and why he subsequently fell into error that in determining that contact should progress to unsupervised.[73]The first of them appears to be the decision that the District Judge himself made in November 2024 that there was the need for professional supervision of contact. As per the recitals to the District Judges November 2024 order, the court considered the allegations of domestic abuse and was satisfied that the arrangements put in place at the time, namely professional supervision of contact, were sufficient to protect the safety and wellbeing of the child and the mother. Of course, such a determination at an early stage of proceedings does not establish a default position nor a presumption in respect of which there has to be any particular level of evidence submitted for the court to then depart from later on in proceedings. However, what it does indicate is that the court had considered, on the basis of the allegations made by the mother at that point in time, that supervision was necessary in order to safeguard both the mother and the child. The allegations made by the mother by the time of the April 2025 hearing were exactly the same as they were in November 2024. All that had changed between that hearing in November and the hearing in April of this year was the Cafcass section 7 report, and the father, it appears, undertook an anger management course. Without assessing in any way the impact that any work undertaken by the father had on mitigating the risk posed to the child or the mother, it is difficult to ascertain what the District Judge thought had changed.[74]The Cafcass section 7 report is the second issue which, in my judgment, caused the District Judge significant problems in the April hearing. More accurately, the direction that the Cafcass section 7 report should address the need for a fact-finding hearing caused significant problems for the conclusion the Judge reached in respect of unsupervised contact. The District Judge in November 2024 had already determined that the allegations were such that a fact-finding hearing was not necessary at that point in time but may well be in the future. Having applied PD 12J, the District Judge had concluded that supervised contact was the most that could align with the welfare needs of the child.[75]In asking Cafcass to consider whether a fact-finding hearing was necessary, alongside asking them to make recommendations as to the progression of contact, the District Judge failed at that point in time to consider the actual purpose of a fact-finding hearing - to ensure that any welfare decisions or assessments conducted by, for example, Cafcass were conducted on a proper and informed factual basis. By asking Cafcass to make recommendations both as to the living arrangements for a child and the nature of contact between that child and their father, but also consider the need for a fact-finding hearing, the judge conflated two separate issues;a. Firstly, whether the court (and for that mater Cafcass) had a sufficient factual basis on which to undertake the assessment of risk necessary as part of a wider welfare analysis, andb. Secondly, what conclusions are reached following that analysis of risk and wider welfare analysis.[76]A further fundamental error that the District Judge fell into was failing to provide within the initial order in November 2024 for actual evidence by way of witness statements to be provided by both parents regaridng the nature of the allegations of domestic abuse and what was said to be the impact of those allegations on the subsequent welfare decisions that were to be made by the court. Had the District Judge directed as such, then by the time he heard the matter again in April 2025, he would have had the benefit of evidence from both parents to assist in determining whether the allegations which were made required determination. Instead, by launching straight into a Cafcass section 7 report, it was effectively left to the Cafcass officer to ascertain from both parents what it was they were alleging and what their responses were, before then making recommendations to the court as to whether a fact-finding hearing was necessary. The fundamental problem with that approach is, of course, Cafcass officers advise the court, but it is Judges who must make the decision as to whether the determination of any allegation is necessary. The views of Cafcass are relevant to the decision that the judge takes, but asking Cafcass to make recommendations following an exploration of the allegations with the parents without there at least being witness statements from them setting out their allegations and responses is fraught with difficulties in my judgment.[77]Ultimately, it was always and will always be for the judge to determine whether a fact-finding hearing is necessary. It is a decision which should be taken based on the evidence provided by both those making allegations and those facing them, the evidential canvass more widely, and an application of the really clear guidance set out within Practice Direction 12J. It seems to me difficult to think of a situation in which it would be necessary or even, in fact, useful for Cafcass to provide their opinion on the issues by way of a section 7 report, as opposed to their opinion by way of a safeguarding letter. But nonetheless, in this case the District Judge was faced, therefore, with his own decision in November 2024 that supervision was necessary in light of the allegations that were made to ensure that the children’s needs were met in the interim, and also, then, the recommendation from Cafcass that a fact-finding hearing was necessary before contact could progress, if it could progress at all, to unsupervised contact.[78]Against that background and in light of the fact that the nature of the allegations from the mother was exactly the same as when that decision was taken in November 2024, it is extremely difficult to work out how the leap was made to consider that both the fact-finding hearing was necessary and unsupervised contact was safe in April 2025. Both of these decisions were the exact opposite of what the District Judge had himself decided just a few months before. The progression to supervised contact was the exact opposite of what CAFCASS recommended. All that had really changed was the Cafcass were now actively supporting a fact-finding hearing before contact progressed beyond professional supervision. The District Judge did not undertake an analysis within the framework of the welfare checklist whilst giving particular consideration to the likely effect on the child and on the care given to them by the parent who has made the allegations of domestic abuse as he was required to do by para 26 of PD 12J. Further, the District Judge failed to give sufficient consideration to the arrangements required to ensure that any risk of harm to the child and the parent who is at any time caring for the child is minimised as he was required to do by para 27 of PD12 J. The District Judge’s focus on the positive supervised contact notes and the only risks requiring mitigation being the father’s alcohol use and the parents coming into direct contact failed to consider the impact on the mother, and subsequently the child, of the domestic abuse which he had already decided was necessary to investigate during a separate fact-finding hearing. This was a fundamental omission which was fatal to the decision taken regarding the removal of supervision of contact in my judgment.[79]It must be noted that the District Judge was not assisted in his task by counsel who appeared for the mother below. The way in which the mother’s case has been articulated by those now representing her is much clearer and much more helpful than the way it was presented by counsel representing the mother in the court below. In my judgment, it does go some way to explaining the difficulty that the District Judge fell into in determining, as he did, that the contact should progress to unsupervised and that a fact-finding hearing was necessary.[80]In failing to consider properly the risks involved at the interim stage under Practice Direction 12J, a number of important considerations were not addressed within the judgment of the District Judge, Firstly, a consideration of what the risks actually were to the mother and the child, including that the controlling and coercive behaviour alleged, if true, would likely lead to the mother feeling that bringing the child to contact knowing it was going to be unsupervised would cause her such worry, stress and upset that it meant that when the child returned to her care she was not able to meet their needs in the way she otherwise would. Further, the risk that the father’s control and coercion may continue through the child in light of the father’s negative view, and alleged domestic abuse, of the mother was not considered explicitly by the District Judge. The District Judge also failed to consider adequately that the allegations that the judge had determined needed to be considered by way of a fact-finding hearing extended well beyond simply the father drinking too much, which the breathalyser test would go some way to mitigate. Indeed, in failing to explicitly consider the risks to the child and mother posed through the as yet undetermined allegations of domestic abuse, the District Judge failed to consider all of the circumstances of the case as is required. By focusing entirely on the “unmanageable risk of harm” as set out within para 25 of PD 12J and not applying the matters necessary to consider under paras 26 and 27, the analysis of the District Judge as to any risk posed was insufficient in the circumstances of this case.[81]It is right that at points within the hearing the District Judge expressed a view that “the issue” in the case was “alcohol”. I have already set out how, at another point, it was said that the other issue which impinged upon the assessment of risk was “the parental relationship”. However, the decision to hold a fact-finding hearing in respect of allegations which were of controlling and coercive behaviour more widely undermines entirely the suggestion that the only issue in this case was the father’s problematic and excessive alcohol use. If that were the case, it would be difficult to see how the judge could ever conclude that a fact-finding hearing was necessary, and even harder to conclude how a separate fact-finding hearing, which is what the judge in this case determined was necessary, was the necessary course.[82]Having taken a step back, I have a great deal of sympathy for the District Judge in respect of the way that the case on behalf of the mother was presented to him in the court below. From reading the transcript, it appears to me that the mother’s case has been advanced before me with a clarity, force and persuasiveness from which the District Judge did not benefit at first instance. However, the reality is, that having determined that a separate fact-finding hearing was necessary in the context of this case and in light of the nature of the allegations that were made, the decision to also at the same point in time progress contact to unsupervised simply cannot be justified. The conclusion of the District Judge that there was not an “unmanageable risk” was not based on a full application of the relevant principles encapsulated within paras 25 to 27 of PD 12J. In light of the yet to be determined allegations of domestic abuse, it was not until the allegations had been determined that a proper assessment of whether the risk posed by the father was manageable or not could be undertaken.[83]The District Judge was duty-bound to consider the welfare checklist under s 1(3) Children Act 1989 in respect of where the child’s interests lay in respect of interim contact arrangements. That is clearly set out within PD 12J. The District Judge did not mention the welfare checklist in the sort of methodical way which may have been useful. Of course, there is no requirement for a judge to slavishly work through the welfare checklist in every case. The extent to which it is mentioned will depend on the nature of the decisions being made. What the District Judge did say, in the context of the scope of the fact-finding hearing he has determined would be necessary, was this:
“I am not opening it for findings of historical additional allegations. It is only on effectively what is said to be controlling and coercive behaviour during the currency of the relationship. I am not opening that to the course of this litigation. If the parties want to exhibit or messages or phone calls or anything that happened, they can be exhibited, but they are not fresh allegations; those are effectively documented issues that have happened. There is not an ongoing relationship between the parties anyway, so it is not what the court is concerned with. The court’s concern is effectively if this is, as is alleged on the mother’s case, a relationship that was so characterised by controlling and coercive behaviour that there is no way to really frame a post-separation parental relationship outside of that being characterised and understood and unacknowledged, then it will have to have that. And of course, if the allegations are not made out, then that will have to be acknowledged as well; we will have to proceed on that other footing. It may well be, as I have already cautioned, there will be a mixture of findings, and some may be found and some may not. To what degree that ever really helps parents, I am not convinced, but 12J is law and my role as the judge is to apply that law and make sure that the child’s emotions and their emotional welfare is protected.”
[84]It is clear from that passage of the transcript that the District Judge clearly had some regard to the emotional welfare of the child as he was required to under the welfare checklist. He also referred to their wishes and feelings of the child by way of reference to the child enjoying time with the father in the contact centre.[85]However, the Judge did not give particular consideration, on the basis of the transcript of the whole hearing that I have considered, to: the child’s physical needs; the likely effect on the child of any change in circumstances; and in particular, any harm which the child had suffered or would be at risk of suffering from changing the arrangements as the judge went on to do, or considering how capable each of the parents were of meeting their needs. There were fleeting references to, for example, the contact centre note saying that contact was “going well”, but that is not sufficient to form a proper basis even at an interim stage of the ability of a parent to meet a child’s needs, particularly, as I emphasise, in light of the decision to hold a fact-finding hearing to determine allegations which have yet to be determined.[86]Inevitably, the key factor within the welfare checklist which required real consideration was any harm the child was at risk of suffering, and whilst the learned judge concluded at one point that there was no “unmanageable risk”, the judge did not go on to consider what that risk actually was of and, subsequently, how it could be managed. Instead, by simply removing any prospect of the yet undetermined risk being managed by removing the professional supervision of contact, the District Judge prematurely determined that the domestic abuse alleged posed no risk to either the mother or child which required contact to be supervised. This was an unjustified decision on the basis that a fact-finding hearing was necessary to determine the allegations of domestic abuse, Cafcass themselves recommended that contact be supervised until such a point that the allegations were determined and the court had previously determined that professionally supervised contact was sufficient to make contact safe.[87]For all of the reasons I have set out, I am entirely satisfied that the decision taken to remove the supervision of contact at the hearing in April 2025 was wrong.[88]It therefore follows that I must grant permission to appeal out of time and subsequently allow the mother’s appeal against the decision to remove the professional supervision of contact between the father and the child.[89]I have considered carefully, of course, the basis of the application in considering whether to grant an extension of time. I make clear that in general even a short period of time may well result in an application for permission to appeal out of time being refused. However, having regard to the relatively short period of time (around six weeks from the date of the decision) and the reasons which are said to have led to that (a change in legal representation and then a short further delay by way of difficulties with the legal aid situation caused by the ongoing disruption of the cyber attack on the Legal Aid Agency), I am satisfied that, bearing in mind that the appeal itself has significant merit, permission to appeal out of time must be granted. I am entirely satisfied, applying that three-stage test that I must, that the seriousness of the failure to comply was not significant in light of it being a relatively short period of time beyond the 21 days. The reason for the non-compliance is the, on the face of it, a justified change of legal representation to those currently representing the mother, and in all the circumstances of the case, it is clear to me that I must grant permission to appeal out of time.[90]I grant the applications made by the mother and allow the appeal in respect of the decision made by the District Judge to direct unsupervised contact prior to the fact-finding hearing. I make abundantly clear, for the avoidance of any doubt, that had it been a case, for example, where the District Judge had determined that the allegations were such which, whilst serious, were not necessary to determine within the context of the private children law proceedings, then it may well have been that any challenge to the decision to also order unsupervised contact may have failed.[91]The reality is, though, and I cannot empathise any more than I have done, the decision to hold a separate fact-finding hearing in respect of allegations such as this is significant. When undertaken properly, the analysis which leads to such a decision would make it the exception rather than the rule, in my judgement, for there to be unsupervised contact prior to the fact-finding hearing taking place. That is not in any way guidance, nor does it add anything to a proper application of PD 12J.[92]Having allowed the appeal, I must consider what I should do. I could set aside or vary the order in respect of unsupervised contact, I could refer it back to the District Judge or another Judge to make a decision about contact, or I could order a new hearing to consider the issue of interim contact. I am entirely satisfied that I should vary the lower court’s order in respect of unsupervised contact. It is clear to me that that the risk of harm to the child of emotional harm through unsupervised contact is far too great to allow at this interim stage prior to the determination of the allegations of domestic abuse which are to be considered later this year.[93]I have borne in mind in particular paragraphs 25 to 27 of Practice Direction 12J and the welfare checklist. I have considered whether it is in the interests of the child to make an interim child arrangement order at all, and whether such an order would expose the child or the mother to an unmanageable risk of harm, bearing in mind, in particular, the definition of “victim of domestic abuse” within the Domestic Abuse Act 2021 and the impact which domestic abuse against a parent can have on the emotional wellbeing of the child, the safety of the parent and the need to protect against domestic abuse.[94]Turning to the welfare checklist, it is very clear to me that the child wants to and enjoys spending time with their father; that is very clear to me on the evidence from the contact centre I have and from the section 7 report that I have read. I work on the basis that the child would like to spend time with their father in a more natural setting outside of the contact centre. However, the child is still very young and has, rightly, a limited understanding of the impact the father’s alleged behaviours are said to have had on the mother. In light of the child’s age and limited understanding, I am unable to attach significant weigh to those wishes and feelings. The child’s emotional needs are important because, on the one hand, the child has an emotional need to continue to develop the bond they have with their father, but on the other hand, has an emotional need for that contact with their father to be safe in the sense that it does not cause them emotional harm, but also in the sense that when they returns to their mother’s care, she is not so negatively affected by the idea of contact taking place because of what she alleges she has experienced at the hands of the father, that she is not able, then, to meet their emotional needs because she is not able to parent them like she otherwise would wish to.[95]In terms of the child’s physical needs, bearing in mind their age, they need those to be met by whoever it is who is looking after him. I have considered the likely effect on the child of any change in his circumstances. It is right that because of the delay caused both by the time it took for the application for permission to appeal being made, but also in respect of the time that it took the admin team to process the application (there being nearly a month between the application being made and it being referred to me) there has been, for the child, sessions of unsupervised contact which took place in line with the order of the District Judge prior to me staying the order pending appeal. It would, therefore, be a change of circumstance for the child insomuch as they have to some degree, experienced the progress from supervised contact to unsupervised contact. I have borne that in mind and recognise that any change would likely cause the child to feel confused in light of their lack of understanding of the allegations which fall to be determined n respect of the father’s domestic abuse of the mother.[96]However, I have to consider any other risks of harm and what that really means for the child on the evidence before me. It is the risk of harm to the child and the mother on which I focus, recognising as I do that whilst it is not the sole relevant factor, it is the most important one in the context of a welfare analysis of this sort in the context of PD 12J. The court has determined that there needs to be a more thorough examination of the particular allegations of controlling and coercive behaviour, including sexually abusive behaviour, which are made by the mother. If they are proved to have occurred then the risk of harm the child is clear. The risks may be of both continued emotional harm through being primarily in the care of the victim of such abuse and the impact it has on the mother’s ability to parent as she may were she not to have been the victim of such abuse. Further, the risk to the child may be that the father’s negative attitude towards the mother and his continued controlling or coercive behaviour to her manifests itself through the father’s interactions with the child. I am bound to bear in mind the impact that that would have on the child and the harm to him of their relationship with their mother being negatively affected because of the negative effect on her ability to meet their needs as a result of her having to promote contact with her alleged abuser. On the other hand, I have to consider that if the allegations are not proven to the requisite standard, then the harm to the child would be that their relationship with their father has not progressed in the way it may otherwise have if the allegations had not been made.[97]At this interim stage, I am not determining whether or not the allegations are true, and I am satisfied, having taken a step back and having considered the welfare checklist as a whole with particular focus on the aspects I have specifically addressed in this judgment, that the directing of anything other than professionally supervised contact would expose the child to an unmanageable risk of harm. Any positives of unsupervised contact for the child, such as the more natural setting of contact away from a contact centre, are far outweighed by this risk. That risk of harm is through both a continuation of controlling or coercive behaviours from the father and the impact that promoting unsupervised contact with her alleged abuser will have on the mother and, importantly, her ability to meet he child’s needs as she otherwise would. Both would pose a very real risk of emotional harm to the child and neither can be managed adequately through unsupervised contact.[98]I am satisfied that contact should take place between the father and the child, notwithstanding the need to determine the allegations of domestic abuse, and that it is important for the child that it does take place in order to maintain the bonds the child has with their father. It is important for their identity need that that does occur and it is a positive experience for the child on the basis of the positive contact notes I have read from the professionally supervised contact which has occurred. However, in order for that contact to take place safely for both the mother and the child, it is necessary for that contact to be professionally supervised in the same way that it was as directed by the District Judge in November 2024 prior to his decision in April 2025 to remove the professional supervision.[99]The District Judge, within the April 2025 judgment, rightly highlights the need to avoid unnecessary contact between the mother and the father. That is clearly something which must be maintained in light of the nature of the allegations of domestic abuse which the District Judge determined were so significant and relevant as to need separate determination at a fact-finding hearing. The handovers must therefore take place in a staggered way.[100]My conclusion as to contact in the interim is based on the evidence such that it is at this interim stage following an application of the welfare checklist within the context of the relevant provisions of PD 12J. Following the fact-finding hearing, the judge hearing the matter will need to consider the issue of contact following an assessment of the impact of any findings made on the risk of harm posed to the child and the mother. Nothing I have said within this judgment must be taken as an indication of what findings the court may, or may not, make in this matter in due course nor as an indication of what long-term arrangements may be deemed to be in the child’s welfare best interests.[101]For the reasons set out in this judgment, I allow the application for permission to appeal out of time and subsequently I allow the appeal. I substitute an order that contact should take place on a professionally supervised basis as set out by the District Judge in the 11 November 2024 order, in place of the order made in April 2025 for a progression to unsupervised contact.[102]I am asked by Ms Ciborowska to consider the issue of publication of this judgment. There is no objection to the publication of the judgment in anonymised form from the father. Successful appeals are one of the specific examples of “Categories of case where the judgment may be particularly suitable for publication” set out in para 3.8 of the “Transparency in the Family Courts – Publication of Judgments Practice Guidance” issued on 19 June 2024 by the President of the Family Division. I am satisfied that the balance lies in favour of publishing the judgment in this case. ---------------

order

“Anger Management Courses Before the next hearing - the father is to complete a certified anger management course and provide a letter of completion to the court and the other parties.”