A recent LinkedIn post I spotted by a barrister raises an uncomfortable but important question: are interim “no contact” orders in private law children proceedings beginning to mirror, in effect if not in doctrine, the kind of interim separation that the Court of Appeal has warned must be approached with extreme caution?

For litigants in person, this is not an abstract debate. It goes directly to how quickly and how easily a parent can lose contact with their child—sometimes on limited evidence, and sometimes for months before a court fully tests the allegations.

This article unpacks what the barrister is really saying, the legal framework behind it, and what it means in practice if you are navigating the system without representation.

The Core Concern

The concern is simple but serious: in private law proceedings, courts are sometimes making interim “no contact” orders early in a case, often based on safeguarding information or initial Cafcass input, without the kind of evidential scrutiny or procedural safeguards that would exist in public law proceedings.

The result? A child stops seeing one parent—sometimes immediately—and that situation can persist for a long time.

The barrister’s comparison is with public law cases, where interim removal of a child from a parent is treated as a “drastic” step requiring strict justification.

The key authority cited is Re C (A Child) (Interim Separation), EWCA Civ 1998, where the Court of Appeal made clear that interim separation must be a last resort.

“Separation is only to be ordered if the child’s safety demands immediate separation and there is no other way of managing the risk.”

The question being posed is whether private law courts are, in practice, sometimes achieving the same outcome—separation—without applying the same level of discipline.

Legal Framework

Private law children proceedings are governed primarily by the Children Act 1989 and the Family Procedure Rules 2010.

The central statutory provision is Children Act 1989, s 1, which establishes that the child’s welfare is the court’s paramount consideration.

The court must also consider the welfare checklist under Children Act 1989, s 1(3), including:

• The child’s wishes and feelings
• Their physical, emotional and educational needs
• The likely effect of any change in circumstances
• Any harm suffered or risk of harm
• The capability of each parent

In addition, Children Act 1989, s 1(2A) introduces the presumption that involvement of both parents furthers a child’s welfare, unless there is evidence to the contrary.

Procedurally, early hearings are governed by the Family Procedure Rules 2010 and Practice Directions, particularly:

• FPR 2010, r 12.2 and Part 12 (Children Proceedings)
• PD12B (Child Arrangements Programme)
• PD12J (Domestic Abuse)

PD12J is especially important where allegations of abuse arise. It requires the court to consider risk carefully and, where necessary, determine allegations before making substantive welfare decisions.

What Is an Interim “No Contact” Order?

An interim “no contact” order is typically made at an early stage—often at the First Hearing Dispute Resolution Appointment (FHDRA)—and provides that the child will not spend time with one parent until further order.

It is usually framed as a temporary protective measure.

However, in practical terms, it can function as a complete cessation of the relationship, particularly if:

• There is no immediate listing for a fact-finding hearing
• The case is subject to delay
• Contact is not replaced with supervised or indirect contact

The Public Law Comparison: Re C

In Re C (A Child) (Interim Separation), EWCA Civ 1998, the Court of Appeal emphasised several key principles:

• Interim removal is a draconian interference with Article 8 rights
• It requires solid evidence, not mere suspicion
• The court must consider less intrusive alternatives
• The decision must be necessary and proportionate

Public law cases also involve significant safeguards:

• A Children’s Guardian
• Local authority evidence
• Structured assessments
• Clear threshold criteria under Children Act 1989, s 31

The barrister’s concern is that none of these safeguards are typically present in private law at the early stage—yet the outcome (a child not seeing a parent) may be the same.

The Private Law Reality

In private law, the pathway often looks like this:

• An application is issued
• Safeguarding checks are carried out by Cafcass
• A short telephone or initial interview takes place
• A safeguarding letter is produced
• At the first hearing, recommendations are made
• The court adopts (or heavily relies on) those recommendations

This can all occur before:

• Any cross-examination
• Any findings of fact
• Any detailed evidence gathering

In some cases, allegations are serious (e.g. domestic abuse), and protective steps are clearly justified. But in others, the evidence base may be thin or contested.

The Problem of “Status Quo”

One of the most important practical points—especially for litigants in person—is the concept of “status quo.”

Courts are often reluctant to disrupt arrangements that have been in place for some time, particularly where a child appears settled.

This is not a formal rule, but it is a powerful influence in decision-making.

So if an interim order results in no contact for several months, that arrangement can begin to look like the “new normal.”

By the time the case reaches a final hearing:

• The child may not have seen the parent for a long period
• Reintroduction may be seen as destabilising
• The court may proceed cautiously or incrementally

This creates a risk that an interim measure effectively determines the outcome.

Article 8 Considerations

Both parent and child have a right to respect for family life under Article 8 of the European Convention on Human Rights.

Any interference must be:

• Lawful
• Necessary
• Proportionate

In public law, courts explicitly engage with this analysis. In private law, the same principles apply, but they are not always articulated with the same rigour at interim stages.

The concern raised in the LinkedIn post is that the seriousness of stopping contact altogether is not always matched by the level of scrutiny applied.

Safeguarding vs Evidence

It is important to be clear: safeguarding is essential. Courts must act quickly where there is a risk of harm.

However, safeguarding information is not the same as tested evidence.

A Cafcass safeguarding letter may include:

• Allegations made by one party
• Police checks
• Initial risk assessments

But it is not a substitute for:

• Cross-examination
• Findings of fact
• Full evidential analysis

This distinction is critical. Interim decisions often rely heavily on safeguarding material, but that material may later be challenged or disproved.

Domestic Abuse and PD12J

Where allegations of domestic abuse arise, PD12J is engaged.

The court must:

• Identify whether a fact-finding hearing is required
• Avoid making final welfare decisions based on disputed allegations
• Consider the impact of abuse on the child and the other parent

However, PD12J also recognises the need for protective measures in the interim.

This creates a tension:

• Protecting against risk on limited information
• Avoiding unfair or premature conclusions

Interim no contact orders often sit at the centre of that tension.

Is There a Risk of Miscarriages of Justice?

The barrister’s use of the phrase “miscarriages of justice” is deliberately provocative.

It does not suggest widespread wrongdoing, but rather highlights structural risks:

• Decisions made quickly on limited evidence
• Significant consequences flowing from those decisions
• Delays that entrench interim arrangements

Whether this amounts to a “miscarriage” will depend on the individual case. But the risk is real enough to merit scrutiny.

The Pathfinder Model

The post also references the ongoing rollout of the Pathfinder model in private law proceedings.

Pathfinder aims to:

• Improve early information gathering
• Focus on safety and risk
• Reduce adversarial conflict

In theory, this could address some of the concerns identified—particularly by improving the quality of early evidence.

However, it may also lead to earlier and more decisive interim outcomes, which could amplify the issues if not carefully managed.

What This Means for Litigants in Person

For those representing themselves, the implications are significant.

1. The First Hearing Matters More Than It Appears

The FHDRA is not just administrative. It can shape the entire trajectory of the case.

If a no contact order is made at this stage, it may persist for months.

2. Challenge the Evidential Basis

If a recommendation for no contact is made, it is important to scrutinise:

• What evidence supports it?
• Is it based on allegations or findings?
• Are there inconsistencies or gaps?

Courts can and do depart from Cafcass recommendations where appropriate.

3. Propose Less Intrusive Alternatives

Drawing from Re C, the key question is whether risk can be managed in a less restrictive way.

Alternatives might include:

• Supervised contact
• Supported contact
• Indirect contact (letters, video calls)

A complete cessation should not be the default if other options are viable.

4. Address Proportionality Explicitly

Even if not framed in legal language, the argument is straightforward:

• Is stopping all contact necessary?
• Is it proportionate to the level of risk?

5. Push for Timetabling

If contact is stopped, it is critical to seek:

• A prompt fact-finding hearing (if allegations are disputed)
• Clear directions and timelines

Delay increases the risk that interim arrangements become entrenched.

6. Distinguish Allegations from Findings

Courts must be careful not to treat allegations as established facts.

Where allegations are denied, that should be clearly stated and recorded.

A Balanced View

It would be wrong to suggest that interim no contact orders are inherently problematic.

In many cases, they are necessary and appropriate—particularly where there is credible evidence of harm.

The issue is not their existence, but their application:

• Are they being made with sufficient evid ential basis?
• Are less restrictive options being properly considered?
• Is their impact fully appreciated?

Conclusion

The barrister’s post highlights a subtle but important shift in private law practice: interim decisions that can have final-like consequences.

The comparison with Re C (A Child) (Interim Separation), EWCA Civ 1998 is not exact—private and public law serve different functions—but it is instructive.

It reminds practitioners and litigants alike that stopping a child’s contact with a parent is a serious step, even on an interim basis.

For litigants in person, the key takeaway is this: early hearings matter, evidence matters, and interim orders are not as temporary as they may seem.

Careful, focused engagement at the outset of a case can make a decisive difference to its outcome.