Re S (A Child) (Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 2004 |
| Year | 2004 |
| Date | 2004 |
| Court | Court of Appeal (Civil Division) |
Contact – Direct contact – Recorder refusing father’s application for direct contact – Recorder debarring father from making further applications for one year – Whether recorder in error – Children Act 1989, s 91(14).
In 1999, the unmarried parents of a child born in 1997 separated. The relationship between the parents subsequently deteriorated to the extent that the mother applied for and was granted an injunction and the father gave non-molestation undertakings. The child had no contact with her father between May 2001 and August 2002, when there were attempts at supervised contact. In June 2001, the father applied for a contact order. Throughout 2001 and 2002 the father attempted to deliver gifts to the child, and a further non-molestation order was made. At the hearing of the father’s contact application, the recorder found that the incidents complained of by the mother were basically at a very minor level. He recognised that the father came over as a fairly aggressive person but had no doubt that the application for contact had been made with the best of motives and with a deep seated desire to see his daughter, and not with any intention to intimidate the mother. The recorder was satisfied that the mother had not behaved positively and he had no confidence that indirect contact would really work, although he expressed the hope that the mother would have a change of mind, without which contact could not move forward. The recorder dismissed the father’s application for direct contact, made an order for indirect contact, and further debarred the father from making any application under s 8 of the Children Act 1989 without the leave of the court for a period of one year, pursuant to s 91(14) of the 1989 Act. The father appealed.
Held – (1) No parent was perfect but ‘good enough parents’ should have a relationship with their children for their own benefit and even more in the best interests of the children. It was, therefore, most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it was clear that the child would not benefit from continuing the attempt. In the instant case, on the findings of the recorder, the failure of contact was to be laid principally on the shoulders of the mother, who had had no intention of making contact work, even indirect contact. In making the order that he had, the recorder had closed the door on any form of contact for the foreseeable future and had effectively abandoned any possibility of a relationship between father and child. In the circumstances, the decision to abandon all hope of achieving some contact had been premature. The recorder’s order would therefore be set aside and the matter remitted for further consideration as to
whether and in what circumstances a further effort for direct contact should be made.
(2) Any restriction under s 91(14) of the 1989 Act was draconian and had to be used with great care. In making the s 91(14) order, the recorder had failed to have regard to the guidelines laid down for the making of such an order. In the instant case, there had been no evidence of circumstances going beyond the commonly encountered need for a time to settle to a regime ordered by the court, and the order would, accordingly, be set aside.
Accordingly, the appeal would be allowed.
Cases referred to in judgmentsC (children: contact), Re[2002] EWCA Civ 292, [2002] 3 FCR 183, [2002] 1 FLR 1136.
C (welfare of child: immunisation), Re[2003] EWHC 1376 (Fam), [2003] 2 FLR 1054; affd sub nom Re B (a child) (immunisation) [2003] EWCA Civ 1148, [2003] 3 FCR 156, [2003] 2 FLR 1095.
Elsholz v Germany[2000] 3 FCR 385, ECt HR.
G (a child) (contempt: committal order), Re[2003] EWCA Civ 489, [2003] 2 FCR 231, [2003] 1 WLR 2051, [2003] 2 FLR 58.
L (a child) (contact: domestic violence), Re; Re V (a child) (contact: domestic violence); Re M (a child) (contact: domestic violence); Re H (a child) (contact: domestic violence) [2000] 2 FCR 404, [2000] 4 All ER 609, [2001] 2 WLR 339, [2000] 2 FLR 334, CA.
O (a child) (contact: withdrawal of application), Re[2003] EWHC 3031 (Fam), [2003] All ER (D) 226 (Dec).
O (a minor) (contact: indirect contact), Re[1996] 1 FCR 317; sub nom Re O (contact: imposition of conditions) [1995] 2 FLR 124, CA.
P (a child) (residence order: child’s welfare), Re[1999] 2 FCR 289, [1999] 3 All ER 734, [2000] Fam 15, [1999] 3 WLR 1164, [1999] 2 FLR 573, CA.
T (a minor) (parental responsibility and contact), Re[1993] 1 FCR 973, CA.
TP and KM v UK[2001] 2 FCR 289, ECt HR.
Yousef v Netherlands[2002] 3 FCR 577, [2003] 1 FLR 210, ECt HR.
AppealThe father appealed, with the permission of the Court of Appeal, against the decision of Mr Recorder Bullock, dated 15 October 2003, whereby he dismissed the father’s application for direct contact. He also made an indirect contact order, refused the father’s application for a psychological assessment of the child and debarred him under s 91(14) from making any further s 8 application without leave of the court for a year. The facts are set out in the judgment of Dame Elizabeth Butler-Sloss P.
Joanne Richards (instructed by Watson Woodhouse) for the appellant.
Gerard Ford (instructed by Freers) for the respondent.
DAME ELIZABETH BUTLER-SLOSS P.[1] This is an appeal concerning a little girl, L, born on 7 April 1997 who is now six. The parents are in dispute over the issue of contact between the father and his daughter. The appeal is from the order of Mr Recorder Bullock, dated 15 October 2003, in which he dismissed the father’s application for direct contact. He made an indirect contact order; refused the father’s application for a psychological assessment of the child and, under the provisions of s 91(14) of the Children Act 1989, debarred the father from making any further s 8 application without leave of the court for the period of one year. This court granted leave to appeal and allowed the appeal to the extent of directing the parties jointly to instruct a consultant child and adolescent psychiatrist to assess the family and the prospects of future contact. We directed that the case be restored to a circuit judge for directions after the report of the consultant psychiatrist had been filed. We directed that the case should, if possible, be heard by a judge who would be able to retain it and provide continuity. We set aside the s 91(14) order. I now set out my reasons for allowing the appeal.
THE BACKGROUND[2] L’s parents are not married. They met when the mother was about 18 and began to live together when the mother discovered that she was pregnant with L. They finally separated in April 1999 and the mother and L went to live with the maternal grandparents. The parents, after parting, remained on friendly terms and were able to agree arrangements for the father to see L and have her to stay. In April 2001 they went together to Disneyland and had an enjoyable holiday. Since that holiday, the relationship between the parents deteriorated to the extent that the mother on 9 May 2001 applied for and was granted an ex parte injunction and on 20 August 2001, the father gave non-molestation undertakings to the court. L had no contact with her father from May 2001 until the attempts at supervised contact in August 2002. The mother alleged incidents of domestic violence by the father, including two attempts to drag L out of the car and on one of those occasions injuring the mother on the arm. The father totally denied those allegations and alleged that the mother was unduly under the influence of the maternal grandmother. There was considerable hostility between the father and the maternal grandmother which arose from issues unconnected with the parents. It appears however that the child witnessed an altercation between the grandmother and the father and was distressed by it. The consequence of these unresolved disputes between the parents has been to sour the previously good relationship between the father and child.
[3] The father applied to the county court for a contact order on 25 June 2001. Over Christmas 2001 and during 2002 the father attempted to deliver Christmas, birthday presents and Easter eggs for L at the mother’s home. The police were called. The father approached members of the maternal family and friends in his attempts to reintroduce contact with his daughter. He attended a pony club event in which L and her mother were taking part which increased the tension between the parents and the stress on the child. A further non-molestation order was made on 7 February.
[4] Four CAFCASS reports were filed, dated 27 September 2001, 30 April 2002, 16 September 2002 and 10 December 2002, from two separate CAFCASS reporters. The first CAFCASS report said that the mother was unlikely to support the principle of contact at that time. She described a child who remembered happy times with her father; said she did not like him and did not want to see him, but was not upset. The CAFCASS reporter suggested that the factual disputes between the parents over incidents of violence should be resolved by court findings and that it would be premature for her to make recommendations as to contact. The second CAFCASS report described a mother who had a determined opposition to any contact at all between the father and daughter. She had formed a new relationship and was about to get married. The reporter met L at school and reported that L was socially well-equipped, but with an underlying sense of anxiety which she focussed on her father. She did not want to try out any meetings with him. The CAFCASS reporter said that a catalogue of complaints was set out in the court papers but she felt that L might be at greater risk of emotional...
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