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F (Children) [2005] EWCA Civ 499

Effect of withdrawal of contact application on requirement for fact-finding hearing.

Re F (Children) [2005] EWCA Civ 499

Court of Appeal: Thorpe and Scott Baker LJJ (7 April 2005)

Effect of withdrawal of contact application on requirement for fact-finding hearing.

This appeal concerned issues arising from a relationship, apparently characterised by domestic violence, between the mother and father of two children born to the couple and a third child from the mother's previous relationship. The mother had obtained two orders under Part IV of the Family Law Act 1996; the second of these, made in March 2004, restrained the father from violence or threats of violence, from harassment, from communication other than through solicitors and from approaching within 100 metres of the mother's home until 24 May 2007.

In September 2003, the father had issued an application in relation to contact; and, in a report prepared in May 2004, the CAFCASS officer recommended that indirect, rather than direct, contact would be appropriate in the present circumstances. On the day before the three-day fact-finding hearing fixed for December 2004, the father sought to withdraw his application for direct contact and for parental responsibility, since he was happy for the time being to proceed with the programme of indirect contact; the judge did not accept that it was appropriate to withdraw the application, it being an application that required the court's permission, and therefore refused leave and dismissed the application.

On appeal, the father submitted, on the basis of the Court of Appeal's guidelines in Re P [1999] 2 FLR 573, that this was a completely inappropriate case for a direction under section 91(14) of the Children Act 1989. The judge granted leave to appeal and, further, asked whether the court could give any guidance in relation to contested contact applications where a fact-finding hearing had been ordered in accordance with Re L and Others (Children) [2000] EWCA Civ 194; in particular, he asked whether the court should accede to the parties' wishes and simply make an order for limited contact on the terms agreed.

Held, dismissing the appeal, that the order made by the judge was not wrong in principle.

As to the guidance sought, the court agreed with the judge's assessment that Children Act proceedings were not adversarial, and should remain a simple enquiry into what solution to the particular problem which the court was facing best met the welfare needs of the child or children concerned. It was clear that the burden imposed on courts of trial by the decision in Re L had resulted in practical difficulties; however, where the applicant withdrew the applications which obliged the respondent to deploy the history which the court had arranged to determine, the consequence was straightforward: there was no need for the defensive case, there was no need for the investigation of that case, and the court could simply accept the compromise, since the acceptance of the compromise did not at that stage risk the welfare of the children or require any proactive steps for their protection. Plainly, the regime for indirect contact agreed in this case did not expose the children to any measurable risk of harm.

Read the full text of the judgment