Children’s Guardian successfully appeals unfair decision to impose a penal notice

An unusual appeal judgment was published earlier this month – a successful appeal by a Cafcass guardian against a court order that she arrange and supervise contact sessions between a child and the father. The judge had put the guardian in the position of being in contempt of court if she didn’t comply with making those sessions happen.

The judgment was handed down in November last year but published this month –

E v D [2025] EWFC 512 [B]

The judgment is also notable for being very critical of the District Judge who made the order. Here’s a brief outline of what it’s all about.

An unusual anonymisation

Unusually, the original published version of the judgment anonymised the District Judge, but did not give any reasons for this. We wrote to the appeal judge to check this, and a new version has been published identifying the judge as District Judge Gray. We still don’t know why it was anonymised first time around, as the replacement version does not mention the edits or the reasons for them. The original anonymised judgment seems currently to also appear at a second url. We expect this is an administrative error and will be remedied, but we include the link here because it might be that when the mistake is corrected, the corrected judgment will be found in that location rather than where it currently is located.

The hearing before the district judge

In August 2025, District Judge Gray in the Family Court sitting in or near Liverpool (from the case number) made an order for interim child arrangements that obliged the children’s mother to bring one of their two children (‘B’) to the Cafcass office and the guardian to ‘support’ direct contact with the father, at least twice, pending the next court hearing.  The judge added a penal notice to the order, which meant that if it wasn’t obeyed by the mother or the guardian, they could be in contempt of court.

There had been a previous order in May 2025 for interim direct contact but the guardian had met B at school where B had become very distressed about the prospect of seeing the father. The guardian told the parents that perhaps a ‘chance meeting’ would be a better initial approach than the contact sessions ordered by the court. Unfortunately this staged meeting didn’t go well. As contact wasn’t happening, the father made a further court application; his barrister and the judge were critical of the guardian discouraging the mother from complying with the order. The judge said the guardian should have made a formal application to vary it.

It’s not clear from the published judgment how old the children are nor why only one of them, B, was subject to what we’ll call a ‘supervised contact order’.

The guardian (on behalf of the children) appealed against the August order. This was supported by the mother; the father neither supported nor opposed the appeal.

The criticisms by the circuit judge

HHJ Parker said [paras 30-31]:

In seeking to compel a Children’s Guardian to facilitate and support contact between a father and, in this case, children, in my judgment, runs contrary to the role of a Children’s Guardian in these proceedings. The role of a Children’s Guardian is not there as a contact facilitator, and they cannot be compelled to do so in my judgment. It is right … that there are cases where a Children’s Guardian offers their services on the basis that they may, for example, have a particularly good relationship with a child or children for whom they are acting where they will offer to observe or to support a contact session for the purpose of assessment which has a dual purpose, in that it may sometimes be successful in kickstarting contact.

That is not a practice that I am seeking through this judgment to disapprove of, and, as a professional working with children, it is very often extremely useful to the Court that Children’s Guardians, as they so often do, are willing to go above and beyond in the interests of the children that they are appointed to represent. However, that is a very different thing from the Court taking upon itself to redefine the role of a Children’s Guardian in Children Act proceedings and that was a step that, in my judgment, District Judge Gray did not have open to him, either in the sense of supporting or facilitating and supporting the resumption of contact between the father and B, or, indeed, for that matter, to compel a Children’s Guardian to hold a preparatory meeting for the purpose of contact.

Apart from the order compelling a Cafcass officer to go well beyond her remit as a rule 16.4 guardian, HHJ Parker noted several procedural irregularities from the transcript of the August hearing.

First, the mother was making an application to adjourn and began to make that application by saying that she had not had time to find a barrister, and the father’s application has been premature and incorrect. She then tried to make representations, but was cut off by the judge. HHJ Parker said the district judge had failed to observe the mother’s Article 6 rights to a fair hearing because the mother wasn’t legally represented, whereas the father and the guardian were legally represented. There was ‘a complete lack of fairness’ to the mother in the way her application was dealt with; the judge should have given her a fair and proportionate opportunity to set out why she wanted an adjournment.

Secondly, there was clear evidence that the guardian was not given a proper and fair hearing, especially when the father’s barrister raised the possibility of the court imposing a penal notice on the direction for the resumption of contact and how that was to take place. This point was made by the barrister at an early stage on the hearing while the guardian was still in another hearing and her lawyer needed to take instructions form her.  However the district judge said (in the guardian’s absence):

“Well, I am not interested with all possible respect, in the Guardian’s views about the imposition of a penal notice. I am more interested in Mr McCormick [father’s barrister] saying we need a re-set”.

HHJ Parker observed [22-23]:

That, with respect to District Judge Gray, is difficult to understand. He was being asked by Mr McCormick to impose a penal notice on a Children’s Guardian. That, in my experience, is a wholly exceptional course. In fact, I have never seen it done before, and I have been sitting now for over 25 years; a wholly exceptional course. Of course, not only was this penal notice on an independent professional, but this was the proposal for a penal notice on a Children’s Guardian; somebody who is there as an independent expert and the role is designed for that expert to make recommendations to the Court about the appropriate courses to take that are in the best interests of the children that they represent.

It is, therefore, impossible to understand why District Judge Gray would be “not interested” in the Guardian’s views about the imposition of a penal notice. That drives a coach and horses through the Children’s Guardian’s Article 6 rights to a fair hearing and simply cannot withstand scrutiny. That demonstrates a judge whose mind is made up and not a judge with an open mind until all parties have had a fair opportunity to express their views.

In any event, HHJ Parker noted there hadn’t been any evidence that the guardian had breached the May order. She hadn’t said ‘no contact’ but just tried to vary the method.

Decision

The district judge’s order was set aside and the case was sent back to a different judge, specifically the senior district judge in Liverpool. This was necessary because the original judge had ‘irretrievably soured the relationship between the Court and the Children’s Guardian’ [35].