March 31, 2021
If you separate from your child’s parent, it may not be possible to reach an agreement about the contact arrangements and you may need to apply to the court for a child arrangements order, where the court will consider the circumstances and decide the frequency and type of contact with each parent.
The Children and Family Court Advisory and Support Service (CAFCASS) will always be involved and a CAFCASS officer will conduct a telephone interview with both parents, complete safeguarding checks and then prepare a brief report to the court called a safeguarding letter.
If one parent makes allegations of abuse or violence against the other, the court may ask that both parties prepare a table of usually up to five allegations including evidence to support each allegation and detailed witness statements to explain the allegations and provide responses. This is in preparation for a fact-finding hearing, where the court reviews the evidence and decides whether each allegation is proven or not. The court may ask CAFCASS to undertake a detailed report, called a Section 7 report, about the allegations. This will involve them speaking with the children to ascertain their wishes and feelings if they are old enough and they may choose to observe contact between the children and one or both parents.
In the case of F v G  EWHC 2396 (Fam), there had been lengthy custody proceedings in America where there were no findings of domestic abuse, but a psychological report referred to ‘harmful conflict’ between the family.
The mother applied for a child arrangements order here but withdrew her application for a fact-finding hearing as she was happy for the father to see the children and for them to go on holiday together.
The CAFCASS officer spoke to both children but did not see them with either parent. The oldest child wanted to see the father more but had previously reported to his GP that he was mean and shouted at him. The youngest child said the father made good food but shouted at them and he felt bad when he said bad things about the mother.
The CAFCASS officer recommended a psychiatric report for the father and that the children and their mother needed a break from direct contact with the father whilst he addressed his behaviour. The psychiatric report found that the father did not suffer from a mental illness or personality disorder. The CAFCASS officer produced an additional report acknowledging the domestic abuse allegations were disputed, but if the father made admissions about the allegations or they were found proven at a fact-finding hearing, risks to the children would be reduced by the father attending a Domestic Abuse Perpetrator’s programme. The court did not consider the need for a fact-finding hearing any further. At the final hearing, the court made findings of fact against the father regarding the domestic violence allegations and accepted CAFCASS’ recommendations.
The father’s appeal was allowed on the basis that CAFCASS had made recommendations although the allegations were not proven and the finding that the children were suffering harm depended on findings about his behaviour. The CAFCASS officer had also not observed the children with the father and the court had not weighed the harm that could be caused to the children losing contact with their father against the risk of his behaviour towards the mother continuing. The court had also not considered other arrangements for direct contact rather than it being stopped completely. The court ordered a new hearing where the court would properly examine the issues.
This case demonstrates the importance of contact between children and both parents and the fact that even if there are risks of harm caused by one parent’s behaviour, it is important for some form of direct contact with that parent to continue where possible, which could be, for example, contact supervised by a relative or friend, or even a private social worker. This will maintain the relationship between the children and the parent but also ensure that they are safe. The decision to stop direct contact altogether should only be made if the allegations are extremely serious and are actually proven.
Wallace Robinson & Morgan Limited are based in Solihull and Dorridge and serve clients across Birmingham and the West Midlands, Warwickshire, Worcestershire and further afield. Our team of Family Lawyers are happy to help if you would like advice about contact with your children following the end of your relationship, marriage, or civil partnership.
If you would like to discuss your matter, please call 0121 705 7571 and ask to speak to a member of the Family law team or email us at firstname.lastname@example.org.
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