M (A Child), Re

An appellate court should not interfere with a carefully reasoned discretionary decision about child contact. A material change in circumstances may nevertheless create a fresh issue requiring judicial consideration. A proposed final or farewell contact visit, supported by evidence of serious illness, should be considered urgently at a hearing on notice in the Family Division. Permission to appeal was refused, but directions were made to facilitate that fresh application.

Mr P, the grandfather of E, sought contact with her after the first-instance court refused his application and reaffirmed the local authority’s order under Children Act 1989, section 34(4), terminating contact. The refusal followed a comprehensive assessment of six considerations, including the risk of re-abduction.

Before the Court of Appeal, Mr P relied on a dramatic change in circumstances. He had undergone serious heart surgery and was said by his solicitors to have a limited life expectancy. He sought at least a farewell visit, subject to E not being distressed. The central issue was whether the existing discretionary decision should be disturbed and whether the changed circumstances required urgent reconsideration.

Application for permission to appeal refused. Lord Justice Thorpe held that the first-instance decision was a careful and humane exercise of discretion. It had been reached after full consideration of the relevant circumstances, including the grandfather’s contribution to the child’s early life. The Court of Appeal could not properly interfere with that decision on the circumstances as they stood when it was made.

1. The later medical evidence materially altered the position. The risk of re-abduction, which had been a significant consideration, was accepted to have become non-existent in the light of Mr P’s severe illness.
2. The proposed farewell contact raised a new issue that manifestly required judicial consideration. It was not appropriate for the Court of Appeal to determine that issue on the permission application.
3. The issue had to be considered urgently by the Family Division at a hearing on notice to the other parties. The court directed that the medical evidence should, if possible, include confirmation from Mr P’s consultant of the estimate of his remaining life expectancy.
4. A copy of the judgment was to be sent to the judge, the guardian ad litem and the local authority to facilitate preparation for an expedited hearing. The application was otherwise refused, with directions as stated in the judgment.

• Court of Appeal (Civil Division): Lord Justice Thorpe refused permission to appeal and directed that the changed circumstances be considered urgently in the Family Division.
• Lower court: On 9 March 2001, the first-instance court refused Mr P’s application for contact and reaffirmed the local authority’s order under section 34(4) of the Children Act 1989 terminating contact.