(Court of Appeal, Thorpe and Scott Baker LJJ, 7 April 2005)  2 FLR 950
The CAFCASS officer had recommended indirect contact and the father agreed to accept the recommendation in an application for contact. The mother applied for a leave restriction under the Children Act 1989, s 91(14) on the morning of the contact hearing. The Court of Appeal held that the judge had been entitled to consider the case history including the respondent's reaction to the without notice order, the content of the CAFCASS report, the circumstances surrounding applications being withdrawn or dismissed and, above all, the children and how renewed litigation may affect them. Where a fact-finding investigation in a contact case involving domestic violence disintegrated due to the application being withdrawn there was no need for the defensive case or for its investigation. The court could, with an easy mind, accept the compromise of indirect contact as it neither risked the welfare of the children nor required any steps for their protection. However, where a respondent abandoned the defence and thus endangered the welfare of the children, the judge may consider it appropriate to proceed with the investigation despite the absence of the principal defence evidence. Per curiam: it was inappropriate for counsel to learn of a cross application under s 91(14) from an opponent on the morning of the hearing.