M (a child)

In proceedings about a child, the ordinary assumption that contact with a non-resident parent is beneficial is not absolute. Contact may be refused where reliable evidence shows a real risk of emotional harm and the refusal is necessary and proportionate to protect the child. The appellate court will respect a trial judge’s assessment of witnesses, expert evidence and the child’s wishes unless procedural unfairness or material error is shown. An order under section 91(14) of Children Act 1989 is justified where repeated applications are being used for an improper purpose and are harmful or potentially harmful to the child. Existing orders should be read carefully: they may permit moderate, infrequent cards, presents and photographs even where further applications are restricted.

The father, who had parental responsibility for D, sought permission to appeal from two Leeds County Court orders in Children Act proceedings. On 3 May 2001, His Honour Judge Kamil ordered that D live with his maternal grandmother and refused contact. On 5 October 2001, His Honour Judge Hunt refused further specific-issue applications and required leave for any further application under section 91(14) of Children Act 1989. The father challenged the conduct and fairness of the first hearing, alleged breaches of Articles 6 and 8, disputed the evidential assessment and argued that contact should be capable of being restarted. He also challenged the restriction on further applications and the position on indirect contact. The central issues were whether there was any appealable procedural error, whether refusal of contact was proportionate, and whether the section 91(14) order was justified.

Lady Justice Hale, with Lord Justice Clarke agreeing, refused both applications for permission to appeal.

1. Fairness and procedure. The father’s complaints about interruptions, his withdrawal from the hearing, the use of Mrs Whittaker’s report and Mrs Wilkinson’s note did not show abuse of process or procedural irregularity. There was no justification for leaving the hearing. The trial judge heard and assessed the evidence, was entitled to accept the witnesses, and had dealt with the expert evidence and the child’s position. The Court of Appeal, having reviewed the material, found no basis to interfere.
2. Contact and Convention rights. The usual assumption in favour of contact between a child and a non-resident parent is important but not absolute. The court must consider both the short-term upset caused by changing a settled routine and the long-term value of maintaining important relationships. Here, the evidence, including D’s clear wishes and the risk of emotional harm, entitled the judge to conclude that contact was not in D’s interests. Refusal of contact was a serious interference with family life, but it was proportionate to the legitimate aim of protecting the child. The complaints under Articles 6 and 8 therefore failed.
3. Restriction on further applications. The criteria for an order under section 91(14) of Children Act 1989 were satisfied. The father was using proceedings for purposes other than those for which they were designed, in a manner harmful or potentially harmful to D. The evidence showed that continued proceedings were affecting D and that the litigation needed to be brought to an end.
4. Indirect contact. The existing order did not prevent the father from sending cards and presents. Such offerings should be moderate and infrequent. In the delicate circumstances, however, an order requiring the carer or child to acknowledge them would have been inappropriate. The court indicated that further applications concerning D should be barred unless the father could show a very good reason for permission.

Applications refused. Permission to appeal refused.

• Court of Appeal (Civil Division) — On 30 January 2002, in [2002] EWCA Civ 155, Lady Justice Hale, with Lord Justice Clarke agreeing, refused both applications for permission to appeal.
• Leeds County Court — His Honour Judge Kamil ordered on 3 May 2001 that D live with his maternal grandmother and refused the father’s application for contact. His Honour Judge Hunt ordered on 5 October 2001 that the father could not make further Children Act applications without leave and refused his specific-issue applications.