Re O (A Minor) (Contact: Indirect Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Court of Appeal (Civil Division) |
SIR THOMAS BINGHAM, MR, SIMON BROWN AND SWINTON THOMAS L JJ
Contact – indirect contact – mother and father separated in July 1992 after cohabiting for three-and-a-half years – child born in September 1992 – father's application for contact granted despite strong resistance by mother – mother failed to comply fully with contact order – mother successfully applied to vary contact order – mother's application to discharge contact order refused – whether Judge wrong not to grant mother's application.
In July 1992 the mother and father separated having cohabited for the previous three-and-a-half years. Upon separation the mother was granted a non-molestation injunction which was breached by the father who received a suspended sentence of 21 days.
On 5 November 1992 J, a baby boy, ("the child") was born. Following the birth the father made his intentions known to the mother that he wished to have contact with the child. This was strongly resisted by the mother whose views had been documented in a court welfare officer's report in May 1993. Nevertheless, in November 1993 a contact order was made in favour of the father which was subsequently revised in March 1994. Almost immediately after the contact order was granted the mother proved difficult over the implementation of contact arrangements; as a result the father applied for a penal notice to be attached to the contact order (that application was later adjourned). The mother applied to have the contact order revoked. A further court welfare officer's report was compiled in which the court welfare officer acknowledged the difficulties in contact and questioned whether contact was in the child's best interests. In August 1994 the court welfare officer wrote in a letter that she believed that contact would only work if the mother was prepared to take part.
On 23 August 1994, after hearing evidence from both parties, the Judge granted the father's contact application. The contact was expressed as "reasonable contact" to include: the mother sending to the father photographs of the child every three months; if and when the child commenced nursery or playgroup the mother was required to inform the father and to send him copies of reports; if the child suffered any significant illness the mother was required to inform the father and send to him copies of all medical reports; and the mother was to accept delivery of cards and presents from the father to the child via the normal postal service.
In September 1994 the mother applied to discharge part of the order relating to the sending to the father of progress reports on the child. In November 1994 that application together with an application for a stay of execution were refused.
The mother appealed.
Held – dismissing the appeal: (1) Sections 8 and 11(7) of the Children Act 1989 were in wide terms and were clearly intended to afford to a court a wide discretion to do that which in the judgment of the court was in the best interests of the child.
(2) Section 11(7) permitted a contact order to contain conditions about how the order was to be effected and to impose conditions which had to be complied with by a parent. The wording of the section conferred a wide and comprehensive power on courts to make orders which would be effective to ensure contact between a child and a non-custodial parent where to do so was judged to promote the welfare of the child. Further, s 11(7) did not impose limitations on the court's wide discretionary power but enabled a court to impose conditions which required positive steps to be taken by one parent or the other in order to facilitate contact.
(3) The overriding principle and paramount consideration of any court concerned with the making of a contact order relating to the upbringing of a child was the welfare of the child. The power vested in the courts to enforce contact orders had to be exercised without hesitation where it was judged that to do so would promote the welfare of the child. The court was concerned with the interests of the mother and father only in so far as they bore on the welfare of the child.
(4) Where parents of a child had separated and the child was in the day-to-day care of one of them, it was almost always in the best interests of the child, that the child should have contact with the other parent. Contact was necessary as the separation of parents involved a loss to the child and it was desirable that the loss would, so far as possible, be made good by contact with the non-custodial parent.
(5) In assessing the effect of direct contact on the child, courts should not readily accept that a child's welfare would be injured by direct contact; but should take a medium term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems. Parents should not be lulled into a false sense of security by believing that the more intransigent, unreasonable, obstinate, and unco-operative they were the more likely they were to get their own way.
(6) Where direct contact was unsuitable it was ordinarily highly desirable that there would be indirect contact in order that the child grew up knowing the love and interest of the absent parent with whom, in due course, direct contact would be established. Such contact called for a measure of restraint, common sense, and unselfishness on the part of both parents. The object of indirect contact was to construct a relationship between the absent parent and the child, not to enable the absent parent to pursue a feud with the caring parent in a manner not conducive to the welfare of the child. Further, a caring parent had reciprocal obligations and if the caring parent placed difficulties in the way of indirect contact then a court had a number of sanctions available including the power to compel a parent to comply with its order; or alternatively the court could revoke a residence order.
(7) Provided the imposition of a condition was lawful it was highly undesirable in a case, where the mother had an implacable hostility to the father, to give the mother any power of censorship or right of veto, to decide that she need only read to the child what, in her judgment, should be read. Where an absent parent abused the right of contact by writing inappropriate, offensive, insulting, or obscene material the remedy lay in curtailing the order. However, that was something different from saying that the parent enjoyed any general right to decide what should or should not be read to the child. A parent's withholding of consent and expression of unwillingness or intransigence to do an act could not defeat a court's power to order that an act be performed by the parent. A parent was subject to an enforceable duty to promote contact where such contact promoted the welfare of the child. Orders made by courts had to be complied with. If a parent objected, the correct course of action was to return to the Judge.
(8) It was entirely reasonable that the mother, the parent with the care of the child, would be obliged to report on the progress of the child to the father, the absent parent. However
courts should not impose duties which parents could not realistically be expected to perform. Nevertheless some means of communication, directly or indirectly, was essential if indirect contact was to be meaningful and if the welfare of the child was not to suffer. Accordingly the court had ample power to compel the mother to send photographs, medical reports, and school reports in order to promote meaningful contact between the father and the child.
Statutory provisions referred to:Children and Young Persons Act 1933, s 39.
Children Act 1989, ss 1(1), 8(1), 11(7).
Cases referred to in judgment:D (A Minor) (Contact), Re[1993] 1 FCR 964.
H (Minors) (Access), Re[1992] 1 FCR 70.
J (A Minor) (Contact), Re[1994] 2 FCR 741.
M (A Minor) (Contact), Re[1994] 1 FCR 678.
M v M (Child Access) [1973] 2 All ER 81.
W (A Minor) (Contact), Re[1994] 2 FCR 1216.
AppealAppeal from Judge Fox sitting at Hartlepool county court.
Giles Pinkney for the mother.
Rachel Smith for the father.
SIR THOMAS BINGHAM, MR.This is an appeal against an order of His Honour Judge Fox, sitting in the Hartlepool county court on 28 November 1994. The order was made in the course of proceedings under the Children Act 1989. On that date Judge Fox refused an application to discharge part of an earlier order made on 23 August 1994, although he did amend another paragraph of that order.
The proceedings concern a boy born on 5 November 1992 who is now aged 2¼. I shall refer to him as "J". The court will make an order under s 39 of the Children and Young Persons Act 1933 restraining any publication which might disclose his name or lead to his identification.
The parents of J did not marry, but they lived together for some three-and-a-half years, separating in July 1992 before J was born. The father gave an undertaking not to pester or molest the mother. He breached that order and was sentenced to serve 21 days' imprisonment, although that sentence was suspended. From an early date he made clear his wish to have contact with J and from an early date the mother made clear her intention to resist such contact. So it was that in the earliest of the reports prepared by the court welfare officer in...
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