Family judge ‘wrong’ about overnight stays following rape finding

A recorder who gave ‘anxious consideration’ to a child arrangement order allowing the child to stay overnight with her father was ‘ultimately wrong’, a High Court judgment has found.

In V v V & Anor, a mother appealed the child arrangement order which allowed her child to stay overnight with the father despite a domestic violence finding in 2021. In those fact-finding proceedings, at which the mother sought and obtained a non-molestation order and an occupation order, the judge made ‘serious’ findings against the father including rape and coercive control. 

Mr Justice Peel, who heard the appeal brought by the mother, said: ‘Domestic abuse is a vile, indefensible scourge in our society. The findings made by the court against [the father] in 2021, albeit within Family Law Act proceedings rather than Children Act proceedings, are very grave indeed. The question is whether these matters require the court to limit contact until they have been fully inquired into at the fact finding stage, and then at the welfare stage when the court will consider the risks to [the child].’

The judgment noted the mother’s ‘allegations of continuing abusive behaviour’ since the 2021 findings and that the father also made allegations against the mother which ‘if proven [are] serious in terms of the impact on [the child]’.

The judge acknowledged the ‘experienced recorder’ who had made the order ‘was familiar with the case having conducted the Family Law Act hearing in 2021’. He added: ‘This was, it seems to me, a finely balanced decision. In the end, I conclude that his order maintaining overnight contact tipped to the wrong side of the balancing scales.’

Allowing the appeal, Mr Justice Peel said: 'Had the judge decided not to hold a fact finding hearing, the position would have been different, but the decision to embark upon fact-finding inevitably leads to a review of the appropriateness and safety of interim contact. I conclude that the judge, who gave this case anxious consideration, ultimately was wrong and should have provided for more limited contact on an interim basis.’ The judge discharged the overnight staying order and provided instead for unsupervised daytime contact.