J-S (A Child), Re

Termination of direct contact is a drastic remedy. The court must assess the child’s welfare, the seriousness and consequences of domestic violence or harassment, the effect on each parent’s ability to care, and the child’s medium- and long-term need for an ongoing relationship. The court must evaluate all material evidence fairly, including evidence favourable to the parent seeking contact.

Parental responsibility is a status distinct from orders under section 8 of the Children Act. The relevant considerations include the father’s commitment, attachment to the child and reasons for applying, subject to the child’s welfare. Misuse can ordinarily be controlled by protective orders, although exceptionally irresponsible conduct may justify refusal.

The father appealed against Liverpool County Court orders made after findings of domestic violence and harassment. The orders terminated his direct contact with R and refused his application for parental responsibility.

The later decision followed further referrals by the father to social services concerning alleged harm to R. The judge treated those referrals as continuing harassment and relied on them, together with the earlier findings, to terminate contact. The central questions were whether the judge had properly assessed the evidence and welfare considerations, and whether he had applied the correct approach to parental responsibility.

1. Appeal allowed. The order terminating direct contact was discharged. The matter was remitted for directions, with interim supervised contact to be restored.
2. The judge had failed to perform a sufficiently critical welfare assessment. The referrals were not shown to have impaired the mother’s ability to care for R or to justify termination of contact. They were also consistent with the father’s extreme or obsessive concern for the child’s welfare, rather than an intention to harass the mother. The judge had failed to give proper weight to the mother’s admitted ambivalence about contact, the child’s established attachment to his father, the child’s medium- and long-term needs, and evidence showing the father responding appropriately to the child’s distress.
3. The appellate court was entitled to interfere because material matters had been left out of the balance. Although appellate courts should respect the trial judge’s advantage in assessing witnesses and personalities, that restraint does not prevent correction of an unsound welfare evaluation.
4. The judge had also applied the wrong approach to parental responsibility. The relevant considerations included the father’s degree of commitment, the degree of attachment between father and child, and his reasons for applying, together with the child’s welfare. Parental responsibility is a status distinct from orders under section 8 of the Children Act. Potential misuse may generally be addressed through protective orders.
5. On the facts, the father satisfied the identified considerations and the case for granting parental responsibility was overwhelming. Direct contact was to resume through two short supervised periods, followed, if practicable, by a longer period before the mother’s proposed holiday. The appeal was allowed by agreement of all three judges.

• Court of Appeal (Civil Division): appeal from orders of His Honour Judge Lynch in the Liverpool County Court made on 15 March 2002. Appeal allowed; the order terminating direct contact was discharged and directions for restored contact were made.