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A Family Court Judge is in a "much better position" than the Police to determine whether unsupervised contact with a child could be appropriately managed
Nottinghamshire County Council v The Mother & Ors (Police Bail) [2024] EWHC 666 (Fam)
Those who deal with public law family cases will be familiar with cases relating to alleged non-accidental injuries to a child coming before the Court and the suspected perpetrators (often the parents) subject to bail conditions. Ordinarily these bail conditions would prevent the person subject to the conditions to not have any contact with a child under the age of 16 unless agreed by Children's Services and/or the Family Court. However it is becoming more and more common for the Police to be imposing a variation to these conditions whereby the alleged perpetrator is to have no unsupervised contact with a child under the age of 16. Such a condition hinders the progress of the Family Law Court which often moves at a much quicker pace than the criminal proceedings. More recently there has been a number of cases whereby the bail conditions are such that the person subject to those conditions is to have no contact (direct or indirect) with a child under 16. The implications of such a condition are a significant interference with the child and parents (if they are subject to such conditions) Article 8 rights to a family life and significantly impede on the Family Court proceedings because it is near on impossible to assess a parent's capacity to care if that parent is unable to have contact with the child.
The difficulty is that bail conditions are imposed by the Police and the Criminal Courts and the Family Court has no power to vary them - so what option does this leave to those who are subject to such restrictive conditions?
Option 1 is for there to be an application to the Magistrates in the criminal court for a variation of the bail conditions. The difficulty with this is that if the person hasn't yet.been charged then their criminal legal aid will not cover the costs of such an application and therefore unless they are able to pay the fees themselves, they are left in a position where they cannot apply to vary the conditions.
Option 2 is for the Family Court to explore with the Police the requirement and necessity of such bail conditions and whether the Police will agree to vary them. In the first instance the Officer in the Case would be invited to attend the Family Court hearing to discuss this issue however in my experience the Police often decline this invitation and the response they provide is the Family Court have no power in respect to bail conditions. In that situation the Police should be ordered to attend the next hearing.
Option 2 was explored by Mrs Justice Lieven in the case of Nottinghamshire County Council v The Mother & Ors (Police Bail) [2024] EWHC 666 (Fam). One of the issues in this case related to whether the second respondent "HD", could be permitted to spend time unsupervised with a four-year old child "X" as a result of HD's bail conditions set by Nottinghamshire Police.
By way of background, HD and TL (the third respondent), were appointed as Special Guardians for X in March 2020 and he remained in their care until events in September 2022. HD and TL were also approved as foster carers and had a child, Y, placed in their care in August 2022. In September 2022, the foster child Y sustained serious injuries in the care of HD and TL. The perpetration of these injuries, and injuries sustained in August 2022, was the subject of a five-day fact-finding hearing in September 2023 when HHJ Reece made findings.
The injuries were found to have been caused by TL, but additional findings were made against HD regarding his non-disclosure of previous injuries observed to Y in August 2022 and his failure to protect Y. The police charged HD on 9 February 2024 with two charges regarding his actions in relation to the injuries to Y. At the time of charging HD, the police amended HD's bail conditions to prevent any unsupervised contact with any child under 16 years, and with all contact to be supervised by an adult approved by social care in advance. Mrs Justice Lieven concluded that “The ability of the LA [local authority] to agree to unsupervised contact was removed and there was no provision for the Family Court to allow unsupervised contact”.
Following the finding of fact hearing, the Local Authority wanted to explore a "Resolution" style approach for the care of X to be transferred over a period of time to the care of HD. A care plan was filed in March 2024 proposing unsupervised contact to commence in April 2024 "contingent on bail conditions no longer being in place and no other concerns being raised". The proceedings were transferred to Mrs Justice Lieven to consider the interface between the bail conditions and the orders as to unsupervised contact that HHJ Reece (who dealing with the care proceedings) can make. Mrs Justice Lieven noted the following " This matter was referred to me because HHJ Reece informed me, […] that Nottinghamshire Police are now routinely imposing bail conditions requiring no unsupervised contact with a child, in cases where there are Family Court proceedings, without including a caveat that there can be unsupervised contact if the Family Court, and/or the LA agree. This stance of the Nottinghamshire Police is, to my knowledge, different from that usually adopted by other Police Forces across the Midlands where, if a bail condition prohibits unsupervised contact, or indeed any contact, with children then that is subject to the LA or Family Court allowing such contact.”
Mrs Justice Lieven commented on the importance of state agencies working together "in the best interest of children and of the justice system" and went on to say "“It is important to have close regard to the reason why bail is requiring supervised contact only with HD. If the ground for refusing to countenance unsupervised contact was that of potential interference with a witness, then that is an issue where I would expect the Police to have an entirely separate area of expertise. The assessment of that risk would generally be a matter for the police, but would necessarily have to be reconsidered on a regular basis. However, the sole ground for the bail condition is the risk of HD committing an offence against X.”
On the facts of the case, Mrs Justice Lieven found that HHJ Reece was in a “much better position” to determine any risks to X from HD, and whether unsupervised contact can be appropriately managed, than are the Police. She concluded: “HHJ Reece has conducted a 5-day fact finding hearing, including having heard oral evidence from HD. He also has the benefit of recommendations from the Guardian employed by Cafcass, who is a senior social worker with enormous experience of assessing risk to children.
Mrs Justice Lieven concluded “The task of the Family Court Judge in a case such as this, is largely to assess and balance risk to children in a timely and proportionate manner. The Family Court Judge has to undertake their task taking into account their statutory duty under section 1 of the Children Act 1989. It is no disrespect to the Police to say that they will have neither the detailed knowledge of the child's best interests in the case nor the same expert advice as will HHJ Reece.”
Finally, she added: “I note that during the hearing Mr Posner [for Nottinghamshire Police] made clear that if I considered that HHJ Reece should be able to order unsupervised contact, then the Police would agree to vary bail conditions. On the facts of this case this was a helpful change of position. However, I note that it only came after a High Court judge had to intervene in the case.
“I would very much hope that in the future the Police will carefully consider the position and role of the Family Court when they come to determining bail conditions in cases such as this.”
So when you next have a case where there are bail conditions in place which prevent the parents having contact with the child and/or the progress of the family proceedings, you sould refer the Judge to the case of Nottinghamshire County Council v The Mother & Ors (Police Bail) [2024] EWHC 666 (Fam) and the comments of Mrs Justice Lieven and direct the Police to attend the next hearing to explore this issue and invite them to work collaboratively with the Family Court whose role it is "to largely assess and balance risk to children in a timely and proportionate manner".
