Judge urges police to “carefully consider” position and role of Family Court when determining bail conditions

The High Court has ruled that a family court judge was in a “much better position” than the Police to determine whether unsupervised contact with a child could be appropriately managed.

In Nottinghamshire County Council v The Mother & Ors (Police Bail) [2024] EWHC 666 (Fam), Mrs Justice Lieven urged the Police to “carefully consider” the position and role of the Family Court when they come to determining bail conditions in the future.

One of the issues in the proceedings concerned whether the second respondent, “HD”, could be permitted to spend time unsupervised with a four-year-old child, “X”, and the terms of HD's bail conditions set by Nottinghamshire Police.

Outlining the background to the case, Mrs Justice Lieven said 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.

“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”, said Mrs Justice Lieven.

The local authority considered its position regarding X's long-term care and filed a position statement, which explained that it was exploring a 'Resolution' style approach for the care of X to be transferred over a period of time to the care of HD.

The council filed a plan in March 2024 which proposed that unsupervised contact commence in April 2024 “contingent on bail conditions no longer being in place and no other concerns being raised”.

Mrs Justice Lieven noted: “The care proceedings are before HHJ Reece to consider the welfare of X and are listed for a final hearing….. I am only considering the interface between the bail conditions and the orders as to unsupervised contact that HHJ Reece can make.”

Outlining the issue, she said: “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.”

She noted the importance of state agencies working together “in the best interest of children and of the justice system”.

Considering the case, Mrs Justice Lieven said: “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.

“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.”

Lottie Winson