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Re C (A Child) [2006] EWCA Civ 144

Father’s appeal against judge’s order for supervised contact allowed.

Court of Appeal: Laws and Wilson LJJ (27 January 2006)

Father's appeal against judge's order for supervised contact allowed.

The mother and father met early in 2002, and their daughter was born in September 2003. In April 2004, the mother left the father, but allowed him contact with the child at her home until an incident in December 2004. In January 2005, the father applied for a contact order and a parental responsibility order. In the mother's statement relating to contact, she alleged that the father had been violent towards her on a number of occasions during their relationship, and that he had shown sexually inappropriate behaviour towards the child, but she made no allegation in her statement that the father was incompetent on a practical level to cope with the demands of the child during contact periods.

At a directions hearing in May 2005, a district judge, following the recommendations of the social worker, awarded parental responsibility of the child to the father, and directed that he should have interim supervised contact with her at the family centre for two hours every fortnight. In September 2005, shortly before the pre-trial review, the local authority filed an addendum report – prepared not by the qualified social worker who had made the initial report but by the family support worker who had supervised the contact – which stated that the contact sessions had been a positive experience, but raised a question as to whether the father would be able to cope on a practical level with the demands of the child during any future unsupervised contact periods.

At the pre-trial review, the judge indicated that the family support officer, but not the original social worker, should attend the substantive hearing in October 2005. At that hearing, the family support officer suggested that the father's supervised contact might reasonably be increased from fortnightly to weekly, and that the court might review the progress of contact after about six months. The transcript of the proceedings showed that, when counsel for the father attempted to make submissions to rebut the question raised in the family support worker's report, the judge cut him short, and made it clear that there was no point in the father giving evidence, as there was nothing he could say that would persuade her to grant unsupervised contact. Accordingly, the judge's order was that the father should have supervised contact of not less than two hours each week, and that the supervisor should have power to increase that amount of contact and to decide on its location following consultation with both parents.

The father appealed, on the basis that the judge had unfairly prevented him from addressing the issue newly raised by the family support officer's report, and thereby failed to give him a fair hearing.

Held, allowing the appeal, that the judge had exceeded the discretion that she was entitled to exercise by refusing to allow evidence or argument on a demonstrably arguable issue, namely whether there was a need for continued supervision of contact. As a result, the judge's order for contact would be varied so as to express it to be interim, with a substantive hearing of the father's application to be listed, before another circuit judge with analogous family expertise, for about four weeks' time.

Read the full text of the judgment here