D (A Child)

In private law Children Act proceedings, appointing a children’s guardian with separate representation is an unusual discretionary course. The decision must be based on the child’s welfare in the individual case, rather than policy considerations or an exceptional local practice. Where a trial judge makes an informed and reasoned choice among contact options, consistently with welfare evidence, the Court of Appeal should not interfere unless the decision is plainly wrong. A welfare assessment may justify limiting contact to indirect contact where direct contact would place harmful pressure on the child or make the child feel torn between families.

The father appealed from a decision of His Honour Judge Ibbotson in the Pontefract County Court on 2 July 2001. After prolonged and unsuccessful attempts to establish direct contact between the father and his daughter, the judge continued indirect contact and refused to appoint a children’s guardian with separate representation. The mother did not participate in the proceedings. The father argued that the judge should have adopted the guardian option to give the child an independent voice and assist in restoring contact. The central issue was whether refusal of that option was an improper exercise of discretion.

Lord Justice Thorpe delivered the leading judgment, and the President agreed. The appeal was dismissed.

1. Guardian and separate representation. Appointment of a children’s guardian and separate representation in private law contact proceedings is an unusual course. The judge was required to consider the application on its merits, particularly the child’s welfare, rather than decide it by reference to general policy or a local practice.
2. Welfare assessment. The court had to balance the benefit of restoring contact against the disadvantages to the child. The welfare officer’s evidence indicated that the child felt torn, knew that the mother opposed contact, and might experience further intervention as intrusive or threatening. The judge was entitled to accept that evidence and conclude that direct contact was not presently in the child’s interests.
3. Appellate restraint. The judge had considered the available options and made an informed and reasoned choice, directly supported by the welfare officer’s advice. The Court of Appeal could not properly interfere merely because another option might have been available. The decision was not plainly wrong and was one which experienced specialist judges could reasonably have made.
4. Policy and local practice. Lord Justice Thorpe observed that extending a Leeds practice of appointing specialist solicitors and guardians throughout the jurisdiction could raise significant public-funding and policy questions. The Court of Appeal should be cautious about validating an exceptional local practice through an individual appeal. Those matters were not, however, the foundation of the decision. The President likewise regarded CAFCASS policy and the local practice as irrelevant to the appeal.

The order for indirect contact was therefore maintained. A transcript of the judgments was directed to be provided at public expense, with a public funding assessment of the father’s costs.

• Pontefract County Court: His Honour Judge Ibbotson continued indirect contact and refused the father’s application for appointment of a children’s guardian and separate representation.
• Court of Appeal (Civil Division): the appeal was dismissed. The judge had exercised his discretion appropriately and the Court of Appeal could not properly interfere.