M (Children) [2013] EWCA Civ 1147 Appeal against order refusing father's contact with his three sons, aged 7, 5 and 3. Appeal allowed, order set aside and case remitted for rehearing.

11/12/2020 11:04


A father of three boys (7, 5 and 3) appealed an order refusing his application for contact. The case had involved significant domestic violence from the father to the mother, witnessed by the two elder children. The father had also had historical criminal convictions including causing grievous bodily harm with intent. Prior to the final hearing, the father had not seen the boys for 18 months, but had attended a number of courses aimed at addressing his violent behaviour.

The judge, having heard both parents give evidence, set out in her judgment that she was in no doubt whatsoever of the mother's truthfulness or of her real terror of the father. She found that the father minimized his behaviour, and was not satisfied that he had learned anything from his engagement with courses. She found that the father would continue to display negative behaviours which would destabilize the children's home and security.

The father's counsel sought to undermine the judge's assessments of the parents generally, but also by reference to new evidence. The Court of Appeal noted that it was exceptionally rare for an appellate court to contemplate reversing the evaluation of an issue which depended on primary facts. Macur LJ noted, in this regard, that the findings of the judge in relation to the parents were unassailable on appeal, but stated that it nevertheless remained the case that there must be careful scrutiny of the outcome reached, given that the order was draconian. She noted that domestic violence, in itself, was not a bar to contact, but should be assessed in the circumstances as a whole.

Given that the father's case had only ever been to apply for unsupervised contact, Macur LJ expressed concern that the judge was adversely influenced against supervised contact by what she considered the father's true intention – to press soon for unsupervised contact. However, she concluded that the appeal should succeed on the ground that the judge failed to adequately address why the children's safety and the management of the mother's anxieties could not be achieved under any circumstances of supervision. This was particularly notable given that the judge had stated, in consideration of the evidence of the child and adolescent forensic psychiatrist who had advocated some limited supervised contact with a review, that "it would be highly desirable if contact could be achieved without undermining other aspects of their [the children's] welfare". 

Macur LJ stated that in order to reach the conclusion that there should be no contact, the court must consider and discard all reasonable and available avenues which may otherwise promote the children's rights to respect for family life, including, if in the interests of promoting their welfare during minority, contact with their discredited father. 

The Court of Appeal allowed the appeal, set aside the order and remitted the case for further hearing before the judge at first instance, with a view to an informed investigation of any appropriate supervised contact resources.