The father applied for a child arrangements order under section 8 of the Children Act 1989 to formalise contact with his children at weekends and holidays, after arrangements for unsupervised contact agreed between the parents had run into logistical difficulties and disagreements. He alleged parental alienation and emotional, psychological and financial abuse against the mother. He claimed an exemption from the requirement in section 10 of the Children and Families Act 2014 for a mediation information and assessment meeting on the basis that his application was urgent for Christmas arrangements to be made. Further information was filed for the mother in a CIA form in which she made minor allegations against the father but agreed to the father having unsupervised access to the children. Cafcass produced a safeguarding letter raising a more serious issue of conduct between the parents. At the first hearing and dispute resolution appointment further serious issues of domestic and other abuse were aired. The judge ordered a two-day fact-finding hearing at which he subsequently found all but two of the allegations had been proved. A final order was made that the father should have only indirect contact with the children once per month.
On the father’s appeal—
Held, appeal allowed. (1) The statutory scheme in the Children and Families Act 2014 made clear the importance of the provision in FPR r 3.3(1) that at every stage of the proceedings the court was required to consider whether non-court dispute resolution was appropriate, with tightly drawn exemptions, including for urgent cases, in rule 3.8. The father’s claim to an exemption from a mediation information and assessment meeting on the basis that it was urgent as Christmas approached had not been checked by the court as required by FPR r 3.10(1). As the urgency dissipated over time, the father ought to have been required to engage with the mediation process and to attend a mediation meeting unless the court was satisfied that in all the circumstances the requirement should not apply. Further, the essential purpose of the first hearing and dispute resolution appointment was as an opportunity for judicially led dispute resolution, as set out in paras 14.8 and 14.11 of the Child Arrangements Programme in FPR PD 12B. At that hearing the court ought to consider, when information before the court raised safeguarding issues, the nature and extent of factual issues and in particular, whether a fact-finding hearing was needed to determine allegations whose resolution was likely to affect the decision of the court. It was important for proper consideration to be given at the first hearing and dispute resolution appointment to non-court dispute resolution, which in the present case might have led to the contact issues being resolved by agreement (paras 34–35, 37–40).
(2) It was important for the court, in every case where fact-finding was being considered, to identify the welfare issues, to understand the nature of the allegations, and then to consider whether the facts alleged were relevant to those issues and whether it was, therefore, necessary for the factual dispute to be determined. At the first hearing and dispute resolution appointment the court had neither identified nor analysed the issues concerning welfare. Most significantly, at no stage had the court considered how such facts as might be found were relevant either to the welfare of the children or the issues that the court was being asked to resolve. The judge’s decision to hold a fact-finding hearing was therefore at least premature. At that stage, the court should instead have (a) identified the issues between the parents as to the children’s welfare, and (b) given the mother time to decide, with the benefit of legal advice, what factual findings she wanted to contend required to be decided by the court, because they were “likely to be relevant to any decision of the court relating to the welfare of the child”, always bearing closely in mind that she was not seeking to prevent contact between the children and their father. Fact-finding was only needed if the court could identify how any alleged abusive behaviour was or might be relevant to the determination of the issues between the parties as to the future arrangements for the children. As the fact-finding made by the judge on the most serious allegations was unsafe, the fact-finding and the schedule to the judge’s order were to be set aside and the matter remitted to a circuit judge to determine whether a fresh fact-finding hearing was required and to reconsider the contact order in the light of the judgment. The parties also ought to consider whether there was room for compromise in the best interests of their children (paras 42–45, 65–70, 79–81, 88).
Per curiam. (i) The Family Mediation Voucher Scheme is a time-limited scheme designed to encourage parties to consider mediation as a means of resolving their disputes. All parties to private law proceedings are urged to make use of that valuable resource (para 36).
(ii) There is a mistaken perception that the Court of Appeal has made it a requirement that in every case in which allegations of domestic abuse are made, it is incumbent upon the court to undertake fact-finding, involving a detailed analysis of each specific allegation made. That is not the case. The duty on the court is limited to determining only those factual matters which are likely to be relevant to deciding whether to make a child arrangements order and, if so, in what terms (para 67).
(iii) All judges hearing children cases will know that there will almost inevitably be emotional fallout following the separation of adults who have been in a close relationship. Whilst the court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the court to hear about, much less to resolve, issues between the parents relating to their time together unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child (para 89).
The father in person.
Jessica Lee and Lucy Maxwell (instructed directly) for the mother.