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Interim Contact Case Law and Practice Directions

Interim Contact Case Law and Practice Directions

In the case Re D (Interim Contact), and on the question of interim contact, Lord Justice Wall set out that in cases where the principle of contact was at issue, an interim contact order could be made if:

the observation of contact would form part of the proceedings (typically on the advice of a CAFCASS Officer or child psychiatrist; or
if there was sufficient information available to the judge for them to order contact, despite the possibility of their granting a different order at the end of a final hearing and having heard evidence; or
in cases where the issue in question was the amount of contact, an order for interim contact could be made without a detailed investigation of the evidence.
“The guiding principle remained the application of the welfare test to the practical facts of the case. The fact that the need to re-establish contact was in the interests of the child did not mean that the court would necessarily make an offer for interim contact. The elementary question had to be asked as to whether it was in the child’s interests for there to be an interim order for contact pending a final determination of that question. The greatest care had to be taken in making an interim order and without hearing oral evidence, to ensure that it was in the interests of the child and that the order did not prejudice the issue. It was difficult to envisage circumstances in which an interim order for contact could properly be made where the principle of contact was genuinely in dispute and where there were substantial factual issues relating to a child which were unresolved without the court hearing oral evidence or having the advice of an expert such as a court welfare officer.”

If there is a clear possibility that the court may order no contact at a final hearing (due to there being serious allegations made against you that you pose a risk of harm to the children), it is unlikely for an interim contact order to be made without oral evidence having been heard, or there having been some investigation by CAFCASS.

´A decision to require supervision of contact must be supported by evidence.´

“On the facts of this case it is clear to me that supervised contact would only have been appropriate if there was the clearest and most compelling evidence that in some way S’s best interests would be jeopardised by unsupervised, normal contact. Given the terms of the Strasbourg jurisprudence to which I have referred, it is almost as if there is a presumption in favour of normal contact and it is for those who say it is inappropriate to prove by clear evidence why this is so.”

By Strasbourg jurisprudence, Mostyn J refers to the European Convention on Human Rights, and specifically, the right to family life. He goes on to say:

If one were to draw up a hierarchy of human rights protected by the Convention I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing. Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life.

Paragraphs 18-20 of Practice Direction 12j apply where allegations have been made related to domestic violence and/or abuse, and where an application for interim contact is considered before determination of the facts in a fact finding hearing.

Where the court gives directions for a fact-finding hearing, the court should consider whether an interim order for residence or contact is in the interests of the child; and in particular whether the safety of the child and the residential parent can be secured before, during and after any contact.
In deciding any question of interim residence or contact pending a full hearing the court should –
(a) take into account the matters set out in section 1(3) of the 1989 Act or section 1(4) of the 2002 Act (´the welfare check-list´), as appropriate;
(b) give particular consideration to the likely effect on the child of any contact and any risk of harm, whether physical, emotional or psychological, which the child is likely to suffer as a consequence of making or declining to make an order;
Where the court is considering whether to make an order for interim contact, it should in addition consider –
(a) the arrangements required to ensure, as far as possible, that any risk of harm to the child is minimised and that the safety of the child and the parties is secured; and in particular –
(i) whether the contact should be supervised or supported, and if so, where and by whom; and
(ii) the availability of appropriate facilities for that purpose
(b) if direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact.

Read the full Guidance: No Link Provided

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