It is not uncommon for family practitioners to deal with cases which have an interplay of both family and criminal elements.
This can be particularly true if there are allegations of domestic violence within a family application, which are also being investigated and or tried within the criminal realm.
There is a presumption under the Children Act 1989 that:
“[…] Unless the contrary is shown that involvement of that parent in the life of the child concerned will further the child’s welfare”.
It is therefore important that the issue of contact with any relevant child/children is properly assessed at the earliest opportunity, so that any such contact is not impacted and can continue even if bail conditions/ a restraining order are made, provided it is safe to do so.
Recent case law
In the recent case of Nottinghamshire County Council v The Mother & Ors (Police Bail) [2024] EWHC 666 (Fam), Mrs Justice Lieven DBE has ruled that a family court judge would be in a “much better position” than the police, to determine issues surrounding contact, particularly whether unsupervised contact could be appropriately managed.
One of the issues in the above case was whether “HD” should be permitted to spend unsupervised time with a four-year-old child “X”, in light of the terms of the bail conditions set by Nottinghamshire Police.
Background
HD and TL were appointed as Special Guardians for X in March 2020 and he remained in their care until events in September 2022. Until September 2022 HD was also employed as a social worker.
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 5 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. The ability of the LA to agree to unsupervised contact was removed and there was no provision for the Family Court to allow unsupervised contact.
The LA filed a position statement dated 28 February 2024 which explained that the LA was exploring a ‘Resolution’ style approach for the care of X to be transferred over a period of time to the care of HD.
There was therefore no certainty that X would necessarily end up in HD’s full-time care. In the LA plan X would commence with unsupervised contact on Saturday
This hearing was solely to consider the issue of HD’s bail conditions which currently preclude any rehabilitation plan coming into effect.
Conclusion and way forward
Mrs Justice Lieven DBE concluded that a family court judge would be better placed than the police to assess risk and make decisions about contact.
Nottinghamshire Police had routinely been imposing bail conditions requiring no unsupervised contact with a child, in cases where there are Family Court proceedings, without including a caveat that there could be unsupervised contact if the Family Court order it or the Local Authority agree to it.
This is a rather unusual stance, as it is common for police forces to include a caveat within bail conditions that prohibit unsupervised contact, or indeed any contact, to confirm that this is subject to the Local Authority or Family Court allowing such contact.
Family Judge’s and the Local Authority are clearly best equipped to undertake a robust and thorough risk assessment to determine the appropriate contact in these types of cases.
It is hoped that all police forces will carefully consider going forward, the role for the family court when determining bail conditions, and in particularly any prohibition or restrictions in relation to contact.
Friendly reminder that this article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.
15 April 2024