S (Children)

In private-law contact proceedings, an appellate court will not interfere with a first-instance discretionary decision falling within the proper discretionary range. A welfare report directed for a specific purpose need not be comprehensive in every case. An order under section 91(14) of the Children Act 1989 may be made where the affected party had adequate notice of the application and the judge explains its effect and reasons. The court’s powers are limited where litigation cannot itself restore damaged family relationships.

The father sought permission to appeal orders made by Connell J in the Family Division concerning contact with his two children. The judge had refused an adjournment for a fuller welfare report, accepted a limited report addressing the children’s wishes and feelings, and made an order under section 91(14) of the Children Act 1989 restricting further applications for 18 months without permission.

The father argued that the welfare report was inadequate and that he had no notice of the section 91(14) application. The central issues were whether the judge had erred in exercising his discretion and whether the restriction had been procedurally unfair.

1. Application refused. Permission to appeal was refused, and permission to appeal to the House of Lords was also refused.

2. The judge was entitled to distinguish Re P [1996] 2 FCR 285. Although welfare reports should generally be comprehensive, the report in this case had been commissioned for the limited purpose of investigating the children’s wishes and feelings. The direction given to the welfare officer was therefore a discretionary decision which was not open to challenge in the Court of Appeal.

3. The complaint that the father lacked notice of the section 91(14) application was unsustainable. The mother’s statement expressly sought an order preventing further applications without leave. The judge had also explained to the father, who was acting in person, the effect of the subsection and the reasons for making the order.

4. The decisions made by Connell J were manifestly within the discretionary range and were plainly appropriate on the evidence, particularly in light of the accepted welfare assessment. The Court of Appeal therefore had no basis for intervention.

5. The court observed that private-law contact litigation presents exceptional difficulty and that the court’s powers and functions in restoring human relationships after a catastrophic breakdown are necessarily limited. Alternative efforts to rebuild the relationship, rather than further litigation, might provide the better prospect of progress.

1. High Court of Justice, Family Division: Connell J made the relevant contact and section 91(14) orders on 29 June 2001.

2. Court of Appeal (Civil Division): Application for permission to appeal refused. Permission to appeal to the House of Lords also refused.