C v D [2025] EWHC 963 (Fam)

Neutral Citation Number:[2025] EWHC 963 (Fam)Case No FA-2025-000051
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/04/2025
Before
MR JUSTICE MCKENDRICK
Between
CAppellantDRespondent
Ms Emily Driver (instructed by Waterfords Law) for AppellantMr Edward Bennett (instructed by Gunnercooke LLP) for RespondentHearing Hearing date: 11 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 16 April 20225 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in public but a transparency order is in force. 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 must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.Mr Justice McKendrick:Introduction
[1]This is my judgment on the appeal against the order of Her Honour Judge Nott dated 18 February 2025. The appellant is the mother of two children. She is anonymised in this judgment as C. The respondent is the children’s father, anonymised as D. The children are aged 7 and 6.[2]Arbuthnot J granted permission to appeal on 25 March 2025 and listed the matter before me, with a time estimate of half a day. I heard submissions from counsel and reserved my decision.[3]There are two aspects of HHJ Nott’s order which are the subject of this appeal. These are:a. at paragraph 9 (a) of the order of 18 February 2025, a child arrangements order was made, providing that the weekly two hour contact between the children and D “shall be supervised by members of the paternal family”; andb. at paragraphs 1 and 3 of the order of 18 February 2025, HHJ Nott reserved the proceedings to herself and listed the matter before her for a directions hearing on 26 June 2025.[4]C appeals against the parts of the[5]Having considered matters I dismiss the appeal and briefly set out my reasons for coming to this conclusion.

Background

[6]Proceedings began by way of a child arrangements order application made by D on 27 October 2023. The two subject children live with C. They both have diagnoses of ASD. The younger child, X, also has global developmental delay, limited vocabulary and Echolalia. D resides with his parents in their home.[7]Magistrates had ordered supervised contact take place between D and the children on 24 November 2023.[8]HHJ Sweeney carried out a fact finding hearing on 28, 29 May and 20 June 2024. He produced a lengthy judgment. He found that C and D’s relationship was highly toxic and acrimonious with domestic abuse on both sides. He found as a fact that D had physically abused C on a number of occasions and that he had engaged in coercive and controlling behaviour. Paragraph 322, however, noted:
“This was not a case of a perpetrator and a victim of domestic abuse. Rather, this was an abusive, toxic and confrontational relationship that damaged and was harmful to all of those who were subject to/witnesses/experienced it and for which both M and F must bear responsibility.”
[9]HHJ Sweeney granted permission for a single joint expert to report, Dr Phibbs, a chartered clinical psychologist. HHJ Sweeney varied contact to permit it to take place in the community. Contact has taken place between D and X at the grandparents’ home since October 2024. It has been supervised by an ISW. The ISW produced a letter dated 30 January 2025. It says:
“Based on the positive outcomes observed during the supervised contact sessions and the absenceof any safeguarding concerns, it is evident that the family remains committed to providing a safeand nurturing environment for [X]. They have demonstrated their ability to engage incontinued learning and meeting [X]’s needs to the best of their ability. This progress indicatesthat transitioning to a supported contact arrangement would be a natural next step.”
[10]Dr Phibbs reported on 20 December 2024. It is a long report. She appears to advise that contact between D and X should remain supervised. The closest advice in this regard appears at paragraph 13:18. This provides:
“With regards to how contact happens I think the work, or similar work that I have suggested, needs to take place prior to any obvious change in the contact arrangements. I think supervised contact is helpful at the moment but could be used more effectively if contact supervisors were also able to support dad in his understanding of [X].”
[11]I pressed the parties on where it is said that Dr Phibbs recommended contact between D and X must remain supervised by an ISW. I was not directed to any such clear evidence.[12]The relevant local authority section 7 Children Act 1989 report (dated 3 February 2025) states that they “are inclined to agree with Dr Phibbs” and do not recommend changes to contact. However, the author then goes on to suggest a lessening of “professional oversight”. Thereafter the report states that ‘consideration in the future could be given’ ‘to supported rather than supervised time, overseen by family members’.[13]Arbuthnot J refused the application for a stay against the appealed aspects of the order.

Judgment

[14]HHJ Nott heard submissions only, at the outset of what was listed to be a final hearing. The parties were agreed an adjournment of the final hearing was necessary. Her clear and succinct ex tempore judgment includes inter alia the following: I have departed from the expert to a limited degree in that I am requiring contact to remain supervised but I do not see, having considered Practice Direction 12J, that there is risk to X, because it is only he, by removing the professional supervision. The reality is there have been months of supervised contact without incident and, in fact, that contact has been very, very positive. Any adult member of the paternal side of the family is competent to supervise that contact and there is of course, an additional protective element in that these proceedings are ongoing andprofessional input is ongoing. Indeed, this father is submitting himself to furtherassessment by Dr Phibbs for a report in these proceedings. The sessions are just two hours per week and, as I say, I have no evidence upon whichI can satisfactorily find that there is significant risk to X in removing theprofessional supervision and replacing it with familial supervision, notwithstandingthe expert evidence of Dr Phibbs. She is looking at matters from her particularexpertise, I am looking at matters in the round based on all of the evidence whichincludes, but is not limited to, the contact that has been here up to now. As I say, the real risk to both of these children, not simply X whose welfare thisdecision is intrinsically concerning, the principal risk to both of them is that very,very, high level of hostility on both sides. There has been a fact-finding hearingwhich in terms sets out that there is no principal perpetrator and no principal victim.The parties have perpetrated domestic abuse on the other. Their position towards theother remains toxic and, indeed, has been described by Dr Emma Phibbs in her reportas each of them expressing white hot anger. That has to stop. It has not stopped to date but the mother’s submissions on thenecessity for contact seem to me to derive more from her white hot anger towards thisfather than they do to her genuine concerns as to the welfare of her children and I donot need to go into it here but Dr Phibbs and, indeed, the contact centre have set out invery great detail all of the problems that have been caused in relation to Ywhich have led to the total breakdown of contact there, notwithstanding the contactthat the father was having with Y was very positive when the mother’s namedid not come up. So I have expressed in more detail the reasons behind my decision but my decisionstands and I do not need to hear from or see cross-examined Dr Phibbs on this verynarrow point as to whether the two hours of weekly contact should be supervisedprofessionally by, it should be said, an independent social worker about whom themother has made significant complaint about and who she has said repeatedly shedoes not think is suitable, or by any member of the father’s family. Therefore mydecision stands and I am happy to hear any application for permission to appeal.

Grounds of Appeal

[15]C has six grounds of appeal against the point about who supervises the contact. The second ground has eight sub-grounds. The third ground has six. And the fourth has two. I can summarise these grounds, taking the summary from Mr Bennett’s helpful skeleton argument: The judge erred in her assessment of risk when considering the interim contact position, including in relation to whether oral evidence was required.[16]Ground seven is: The Judge erred, once the final hearing before her had to be adjourned, in not returning the proceedings to be heard by the judge who had president over the bulk of the case including the fact-finding hearing and all subsequent decisions regarding interim child arrangements, this decision made without any analysis of the impact of such on the children.

Analysis

[17]Family Proceedings Rule 30.12 (3) states:
“The appeal court will allow an appeal where the decision of the lower court was: (a) Wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
[18]Both parties referred me to the decision of Black LJ (as she then was) (with the agreement of Mummery and Patten LJJ) in A (A Child) [2013] EWCA Civ 543 at paragraph 38. Black LJ makes clear the outcome of the appeal was dictated by the particular facts and further states she was not holding that adjustments to interim contact could never be made in circumstances where a commissioned expert report was awaited. The respondent’s submission was that:(a) a fact specific holistic assessment was required; and(b) that, in those circumstances, Black LJ’s decision did not preclude interim contact in circumstances where an expert report was awaited. I am not sure this decision adds very much to resolve this particular appeal.[19]HHJ Nott’s decision to change the supervision from an ISW to a paternal family member was approached, from the perspective of a fair procedure, in this way:a. She considered all the relevant evidence and in particular the evidence from the expert and the local authority;b. She recognised she was departing from the expert view and appropriately evaluated this and gave reasons;c. She correctly considered Practice Direction 12J;d. The judge considered it within the margin of appropriate case management decision making, to read and hear submissions on the expert evidence rather than hearing cross-examination.[20]Procedurally, it is clear the judge had read a very substantial amount of the background evidence, which included the expert report; the fact finding judgment; both parties’ witness statements in response to the fact finding judgment; other witness statements; the contact centre supervision notes and the parties’ position statements. HHJ Nott cannot therefore be faulted for determining it was not necessary to hear the cross-examination of Dr Phibbs.[21]Clear reasons emerge from HHJ Nott’s judgment to justify the limited changes to the interim child arrangements order. These include:a. There had been months of contact between D and the children without incident;b. The contact had been “very, very positive”;c. An adult member from the paternal side is competent to supervise;d. There are two further protective measures: i. the ongoing expert assessment which involves D; and ii the ongoing court proceedings;e. Given the contact sessions were just two hours each weekend, there was no significant risk to X of removing professional supervision;f. She noted the expert view, but all matters in the round had to be considered;g. The domestic abuse between C and D was perpetrated against each other and there was “no principal victim”.[22]I cannot detect an error of approach or principle. Some judges may have continued with ISW supervision, but HHJ Nott considered all relevant factors and balanced them in a manner which was appropriately focussed on any risks arising out of changing the nature of supervision. In my judgement, her order was not wrong and was plainly open to her.[23]I have re-read paragraph 38 of Practice Direction 12J. I do not consider the judge overlooked these paragraphs. The judge expressly considered PD 12J in her judgment. She was entitled to assess risk and conclude the supervision could take place by grandparents and not the ISW, given the factual background. She was aware of the particular findings of domestic abuse involving these parties and had read and digested HHJ Sweeney’s fact finding judgment.[24]It was not necessary for there to be further evidence regarding the father’s mental health or to require evidence about the grandparents other than that which had been provided. Dr Phibbs has continued her assessment of the father.[25]Furthermore the report and section 7 report recommendations were fairly nuanced. From my reading, neither report was flagging clearly and unreservedly that there were significant safeguarding risks to X if the contact with D was not supervised by an ISW.[26]Mr Bennett also prays in aid the fact contact sessions have taken place without incident since 18 February 2025. This is post-appeal information. No Ladd v Marshall style application has been made to adduce further evidence. But I note this information and the fact HHJ Nott will hear this matter in June 2025.[27]In respect of the judge’s decision to reserve matters to herself, I cannot detect any error whatsoever. HHJ Sweeney had moved to a different geographical court. This was a case management decision open to HHJ Nott. Appellate courts should support robust but fair case management directions, see Sir James Munby P at paragraph 35 of Re TG (A Child) [2013] EWCA Civ 5; [2013] 1 FLR 1250. Albeit, I might add this case management decision is not within the category of decisions that might be described by an appellate court as ‘robust’.[28]The appeal must be dismissed.

order

(i) providing for supervision by the paternal family (as opposed to the previously ordered supervision which was undertaken by an Independent Social Worker (ISW)); and(ii) against the decision of the judge to reserve the proceedings to herself.