M (A Child), Re

In welfare decisions concerning contact with a child, the Court of Appeal will not interfere merely because it might have evaluated the evidence differently. Where the first-instance judge has seen and heard the witnesses, weighed the relevant risks and correctly treated the child’s interests as paramount, appellate intervention is unavailable. This restraint is especially strong where the decision was difficult and finely balanced, because the appellate court has not tried the case or formed its own view of the witnesses and professionals. A close family relationship and previously important contact do not override a current welfare assessment showing that contact would not serve the child’s interests.

The applicant was the maternal grandfather of a severely disabled child whom he had cared for until 1999. After he abducted her and she was returned to England, she lived with foster parents and had no direct contact with him. Kirkwood J refused applications for regular contact and later for a farewell visit, relying on evidence of the risks to the child’s welfare. The grandfather sought permission to appeal, arguing that contact was important because of their close relationship and his continuing commitment to her. The central issue was whether there was any real prospect that the Court of Appeal could interfere with the judge’s welfare assessment.

Application refused. The Court of Appeal held that there was no real prospect of successfully challenging Kirkwood J’s decision.

1. The child’s interests were paramount. The first-instance judge had considered expert, social-work and guardian evidence and identified the risks associated with contact, including the child’s difficulty in understanding it, disruption to her routine and family life, possible regression, conflict with her carers, disclosure of confidential placement information and abduction.
2. Although the grandfather’s deteriorating health removed the risk of further abduction, the judge concluded that the other risks remained. The later request for a farewell visit therefore did not require a different result. The child’s previous relationship with her grandfather and the former importance of contact could not displace the current welfare assessment.
3. Where a judge has seen and heard the witnesses, weighed the relevant factors and correctly applied the law, the Court of Appeal cannot interfere with the resulting welfare decision. The more difficult and finely balanced the decision, the stronger the reason for restraint, since the appellate court does not retry the case or form its own view of the witnesses and professionals.
4. As a tentative observation only, Hale LJ suggested that social services might consider providing the grandfather with a longer video showing the child as she then was. This was suggested as a possible means of reassurance and was expressly separable from the considerations supporting refusal of direct contact.

The application was refused. A transcript was ordered to be provided at public expense to the grandfather and social services.

1. Court of Appeal (Civil Division) — On 25 July 2002, the application for permission to appeal was refused: [2002] EWCA Civ 1160.
2. High Court, Principal Registry of the Family Division — Kirkwood J refused the grandfather’s applications for regular contact and subsequently for a farewell visit, including by an order dated 8 February 2002.