W (a child), Re

In child contact proceedings, the court should not close the door to future contact merely because present arrangements have broken down or the child expresses strong opposition. The child’s welfare requires the court to consider whether further therapeutic or specialist assistance may make a relationship with the non-resident parent possible. A child’s views must be listened to and taken seriously, while the court must assess the reasons for those views and the wider welfare evidence. Separate representation in private law proceedings is exceptional. Where it is appropriate, the usual modern route is to invite CAFCASS Legal to provide guardianship and representation. Mental health professionals identify problems and suggest solutions; responsibility for resolving family difficulties remains principally with the parents, assisted where appropriate by the court and professionals.

The father appealed against an order which had brought the court process concerning contact with his son to an end. There had been no contact for more than 18 months. The child had been joined as a party and represented by a solicitor, with an independent social worker reporting, after concerns emerged about his feelings and experiences concerning contact.

The trial judge accepted significant welfare concerns and the child’s reluctance to see his father, but concluded that the process should end and that efforts should continue outside the court system. The central issue was whether the judge had been entitled to treat the proceedings as exhausted or whether one further, differently structured attempt should be made.

1. Appeal allowed in part. Permission to appeal was granted, and the appeal was allowed to the limited extent that CAFCASS Legal was to be invited to act for the child and investigate whether the family difficulties could be addressed.
2. The President considered that the trial judge had been entitled to recognise the serious problems in the case and to take the child’s views into account. The judge had, however, gone wrong in concluding that the court process should end. The court should have allowed one further attempt of a different kind before closing the door on litigation.
3. The child must be listened to and taken seriously. The child’s welfare may require efforts to make a relationship with the non-resident parent possible even where the child does not presently want contact. The parents’ conduct and insight remain important, and the father needed to understand the problems identified by the child and the professionals.
4. The President deprecated the appointment of a solicitor and independent social worker for a child as young as seven in the circumstances described. In an exceptional private law case requiring separate representation, the appropriate modern course was first to approach CAFCASS Legal, which could provide a guardian and take over the child’s case. The CAFCASS Practice Note was identified as useful guidance.
5. CAFCASS Legal was invited to consider instructing a child psychiatrist or other mental health professional, with permission to disclose the relevant papers and, if appropriate, arrange assessment of the family, including the extended family. Such professionals could identify problems and suggest solutions, but the parents remained responsible for making progress.
6. Lord Justice Ward and Lord Justice Keene agreed. There were no costs, apart from legal aid assessment, and transcripts were to be supplied at public expense.

• Circuit Court: The trial judge brought the contact proceedings to an end after considering the child’s views, welfare concerns and professional reports.
• Court of Appeal (Civil Division): The appeal was allowed to the limited extent that CAFCASS Legal was to be invited to act for the child and investigate further options. [2001] EWCA Civ 1830