(Court of Appeal; Ward and Stanley Burnton LJJ and Sir William Aldous; 12 November 2008)
Following the couple's separation there were protracted proceedings concerning the children's residence and the contact arrangements. At a fact-finding hearing the judge found that there had been domestic violence by the father, but also that this was a father who 'could offer so much to his children'. Direct contact was ordered, but after a dispute between the parents, to which the police were called, contact lapsed for a while before resuming at a contact centre. Eventually the trial judge found that the children were so worried about unsupervised contact with the father that they wanted to end direct contact with him. The judge made orders providing for indirect contact, but commented that counselling would be helpful, and that he would be willing to hear submissions about that route and amend his order if necessary. The father appealed.
The court was concerned that the true underlying issue had not been fully or properly dealt with; the court could not be satisfied that the judge had grappled with all the alternatives open to him, the most obvious of which was to explore fully the possibility of the couple undertaking some form of counselling.The judge should not have made the order until he had heard submissions concerning counselling. The matter should be reheard.