D-R

There is no presumption that a parent has a right to contact with an adult child who lacks capacity to consent. The court must determine whether contact is in the adult’s best interests.

Relevant circumstances include the history of the relationship, the present situation, future prospects, the quality and value of the proposed relationship, the primary carer’s attitude, and any likely disruption or burden. The parental relationship remains a relevant factor and may be important, but it must be weighed with all other circumstances. An appellate court should not interfere with a trial judge’s welfare assessment absent an error of principle.

The appellant father sought declarations and an injunction permitting and facilitating contact with his adult daughter, L., who had severe cognitive and communication disabilities. The application invoked the inherent jurisdiction of the High Court after statutory contact jurisdiction had ceased.

The deputy High Court judge considered L.’s welfare and dismissed the application on 2 July 1998. He concluded that renewed contact would not be in her interests, having regard to her limited understanding, the father’s limited significance in her life, the mother’s opposition and anxiety, and the disruption associated with L.’s move to residential college.

The father appealed, arguing that the family relationship created a presumption in favour of contact and that the judge had applied the wrong test.

1. Appeal dismissed. The Court of Appeal unanimously held that there was no error of principle in the deputy judge’s approach.
2. L. was an adult under a disability and could not give meaningful consent. Applying the principles in Re F Sterilisation Mental Patient [1990] 2 AC 1, the question was whether contact was in her best interests.
3. There was no presumption of a right to contact between a parent and an adult child, including an adult child under a disability. If there were no family conflict, contact with willing family members might naturally be desirable. Where conflict existed, however, the court had to consider all the circumstances, including the history and former relationship, the current position and the prospects for the future.
4. The father-daughter relationship was a relevant factor and could be highly important, but it had to be weighed with the other circumstances. The judge was entitled to consider the father’s intentions, the previous relationship, his lack of sensitivity and foresight, the mother’s hostility and anxiety, the professional concerns about L.’s transition to college, and the likely disruption and practical difficulty of making contact effective.
5. Although implementation was not strictly part of the best-interests question, the prospect that contact would provide a relationship of value could properly be considered. The judge had formed a clear view on the evidence, and the Court of Appeal would not second-guess that discretionary welfare assessment absent an error of principle.
6. The court did not decide whether the High Court had jurisdiction to entertain the application or whether declaratory relief was a suitable procedural vehicle. It observed obiter that a declaration might lack effective enforcement, flexibility and capacity for monitoring or variation.

Order: appeal dismissed with the first respondent’s costs. No order as to costs concerning the Official Solicitor. Leave to appeal to the House of Lords refused.

• Court of Appeal (Civil Division): Appeal from the decision of Mr M Horowitz QC, sitting as a deputy High Court judge in the Family Division, dismissed on 2 July 1998.
• Court of Appeal (Civil Division), [1999] EWCA Civ 701 : Appeal dismissed with costs orders as stated in the judgment.