Private Law
December 2023

27 February 2024
The court consider the father’s appeal against the court’s decision that progression of contact would depend on his engagement in psychotherapy
Re G (Supervised Contact) [2023] EWCA 1453


The court consider the father’s appeal against the court’s decision that progression of contact would depend on his engagement in psychotherapy. This case gives guidance as to the factors the court should consider when considering the issue of future risks.

It also reminds parties of the courts wide discretion when considering welfare. The father’s appeal was dismissed on basis that the court had been fully entitled to devise a route map over a period of months chartering a path between that recommended by each of the two experts.


The parties married in August 2010 and the parties’ twins were born in late 2014. The parents separated in March 2021 and from that point all contact between the father and the children was supervised until the order dated 18 May 2023.

The father appealed against the order of 18 May 2023 which set out a stepped arrangement, whereby the father’s contact would progress from supervised to unsupervised contact and then onto overnight stays. The arrangements were dependent upon the father engaging in therapy with a psychiatrist who was also a qualified psychotherapist.

The appeal was granted on the grounds of whether the judge had failed to adequately identify the type and likelihood of risk in the future and had placed too much weight on the evidence of the court appointed psychiatrist.

Before the court considered welfare, a fact finding was held and the judge's judgment, which has not been the subject of an appeal, can be found at [2022] EWHC 140 (Fam). The court’s conclusions are found at para.[63]

‘In my assessment the father has a flaw in his character which until it is addressed means he poses a risk of losing his temper with them, of imposing unreasonable rules on them and poses a risk of emotional and physical harm (limited at present) outside the confines of supervised or supported contact. Until he addresses that flaw that risk seems likely to remain. Given he has said he would address it in the past and has not seen it through either because he never really accepted the full nature of the issues, or because he found it too hard or became demotivated, presents a challenge going forwards. How will a psychotherapist truly know if he is engaging or is paying lip-service?’

During the father’s appeal the court concluded that ‘in circumstances where the father wholly rejects the findings made by the judge, findings which dovetailed with the father's own contemporaneous account given to Dr Oppedijk, it cannot be said that the judge should have set aside the earlier concerns and findings which had been generated by life lived in a more normal day to day domestic environment than that conducted within the artificial constraints of supervised contact’.

Issue of Risk

The question therefore was what risk, if any, did the father continue to present, and if so, what was the level of the risk and what form of contact could best mitigate any such risk whilst aiming, in the interests of the children, to seek to progress contact towards a more natural and extensive relationship between the father and the twins.

For the purposes of welfare there were two experts instructed. A psychiatrist / psychotherapist was instructed to assess the father’s mental health, including whether he had any identifiable mental health personality or other disorders. The second expert was an independent social worker who was jointly instructed to undertake a welfare report in relation to the family.

The expert opinion was that the father had 'narcissistic personality traits’. The expert concluded that the existence of untreated personality traits meant that there were ongoing risks to the children if unsupervised contact took place. She spoke of the need for psychotherapy 2-3 times a week over 2 years. Through that vehicle the risk to the children could be reduced.

Whist the two experts did not entirely agree as to the extent of the risk the father presented to the children in the area of emotional and physical abuse, they were each agreed as to the importance of thinking about said risk.

The court therefore dismissed the appeal and held that each of the risk factors were adequately identified and informed the judge's conclusions as to the appropriate way to progress contact in the interests of the children. The court had been fully entitled to devise a route map over a period of months chartering a path between that recommended by each of the two experts.

Judicial comments on management of private law proceedings
Ms X v Mr Y [2023] EWHC 3170 (Fam)


The case concerned the mother ‘s application for various orders concerning the parties two twin girls. This included the mother’s application to removal the father’s parental responsibility. The case provides some important lessons about the management of highly contentious private law proceedings and this summary shall focus on the judicial comments relating to management of private law proceedings.


A final order was made on 8 November 2018 which stipulated the father would have contact with the children three times per week. The mother submitted that she was coerced into agreeing the order by the father. In October 2020 the mother filed an application to vary the Child Arrangements Order made on 8 November 2018.

At the time of the hearing dated 13 November 2023, proceedings had been ongoing for more than 3 years. A large part of the delay stemmed from the father’s criminal charge which resulted in a conviction for coercive and controlling behaviour against the mother. The father was sentenced to 30 months’ imprisonment.

During proceedings the court and parties agreed that no fact-finding hearing was necessary in the light of the father’s conviction, yet the case experienced delays.

Judicial comments on management of private law proceedings

‘As is well known, there is massive pressure on the family justice system at all levels, and it is essential that we use our precious resources well, to improve the outcomes, and the speed of outcomes for children within the system. One of the ways that can be done is through effective and proportionate case management’.

In "the Road Ahead" [2021] the President of the Family Division (Sir Andrew McFarlane) said:

"43.If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear."

  1. In a case where a person is serving a custodial sentence of significant length for domestic abuse, it is unlikely to be necessary to conduct any further fact finding.
  2. In cases where there are significant written reports which are relevant to welfare of the children and the information needed by the court to make informed decisions, the need for oral evidence is extremely limited. In this case there were at least three written reports.
  3. There is no right in Family Court proceedings to cross examine a witness pursuant to Article 6. That right exists under Article 6(3)(b) in respect of criminal charges, not other proceedings. The duty under Article 6 in respect of Family Court proceedings is to ensure that all parties have a fair trial.
  4. It is essential that courts list cases with short and proportionate time estimates. The time estimates must focus on the issues in the case and not the amount of time that the parties, and/or their advocates wish to take. There is a duty on the advocates to assist the court in focusing on the real issues in the case and setting a proportionate timetable.

In this matter the court held that once father was convicted the case only justified short evidence from the mother, father and the Cafcass officer. In fact, it was not necessary to call the mother or the father given their written statements and what was obvious from the papers. One day was the appropriate time estimate in this case.

Temporary Removal from jurisdiction (Malaysia and Hong Kong)
HTD and HTE (Children), Re (Temporary Removal from Jurisdiction - Malaysia and Hong Kong) [2023] EWFC 227


The court granted the fathers application for a prohibited steps order restricting the mother from removing the children from the United Kingdom. The mother opposed the father’s application and sought a specific issue order, permitting her to visit family in Hong Kong and Malaysia. The court dismissed the mother’s application and made an order prohibiting the mother from travelling to Malaysia and Hong Kong for a period of 12 months.


The father’s application for a prohibited steps order was made alongside his application for a 50/50 shared care order.

The final hearing on these two matters were allocated to Paul Bowen KC as the question of whether travel should be permitted to Hong Kong and, in particular, Malaysia, a jurisdiction which is not party to the Hague Convention on the Civil Aspects of International Child Abduction 1980 ('the Hague Convention 1980'), is of sufficient complexity to require determination by a judge authorised to sit in the High Court.

The children are British nationals, born and habitually resident in England and Wales. The father is from South Africa. The mother is a dual British and Hong Kong national with family in both Hong Kong and Malaysia.

On 21 April 2023 the gave the mother permission temporarily to remove the children to Spain for a two-week holiday. Permission was given on the basis the mother gave serval undertakings to the court. The mother took the children on holiday to Spain and despite the father's concerns the mother complied with all the undertakings and directions. The mother sought a further specific issue order for a trip to Hong King and Malaysia to visit family in both jurisdictions.

The legal framework

The starting point is section 13 of the Children Act 1989.

Section 13(1) (when read with s 13(4)) provides that;

'Where a child arrangements order [which regulates when and with whom the child concerned is to live] is in force in respect of a child … no person may … (b) remove him from the United Kingdom … without either the written consent of every person with parental responsibility for the child or leave of the court'.

Section 13(2) provides that s 13(1)(b) 'does not prevent the removal of a child, for a period of less than one month, by a person named in the child arrangements order as a person with whom the child is to live'.

The overarching consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention 1980 country is whether the making of that order would be in the best interests of the child':

In Re A (Prohibited Steps Order) [2014] 1 FLR 643, the court held that;

  1. The court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail;
  2. 'If in doubt the court should err on the side of caution and refuse to make the order':
  3. Consideration should also be given to;
  • the degree of risk of abduction;
  • the degree of harm to the children and the father as a result of their abduction;
  • safeguards that reduce the risk of abduction and those that increase the likelihood of securing the children's return in the event of abduction

The court decision to dismiss the mother application to travel to Hong Kong and Malaysia was informed by expert reports on the laws in Malaysia and Hong Kong and what safeguards there were in each jurisdiction to secure the return of the children.

The court considered that the parents needed to develop a degree of trust and co-operation that would enable them to provide the children with the emotional stability they currently lack. Until very recently the children were on the 'at risk' register because of the emotional harm they have suffered due to their parents' toxic relationship. The court considered that for the mother to travel with the children to Hong Kong or Malaysia at this stage would further undermine that process and will lead to additional conflict.

The court also considered the mother’s ‘gofundme’ page which was set up to raise funds for the legal proceedings.

On the page the mother had identified herself and the children and publicised her allegations of coercive and controlling behaviour against the father, even though she no longer pursued those allegations in the proceedings. By the time the webpage had been deleted there had been 37 donations totalling £3,350. The court noted that the mother appeared to be in contempt of court under section 12 of the Administration of Justice Act 1960 ('the 1960 Act') and a breach of section 97(2) of the 1989 Act, which makes it an offence for any person to publish to the public at large or any section of the public any material which is intended or likely to identify any child as being involved in any proceedings before the Family Court

It was submitted on behalf of the mother that the mother was unaware that such publication was prohibited. The court detailed the three possible ways forward to address the potential contempt issue, however, the court held that committal proceedings would not be proportionate or consistent with the overriding objective.

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