C v C

In family proceedings concerning contact with teenage children, the court’s central task is to promote welfare and, where feasible, facilitate a lasting relationship. Investigating past blame is secondary unless necessary to advance the case. Where the evidence is incomplete, a family-based psychiatrist or psychologist may be engaged in a facilitative and mediation-oriented role, with the aim of avoiding further adjudication. Under section 9(6) of the Children Act 1989, contact orders after a child reaches 16 are exceptional. Under section 1(5), an order should be made only where it is better for the child than making no order.

This was an appeal by the father in C v C concerning contact with his two teenage daughters. The proceedings had a long history and the children expressed strong opposition to involvement with the guardian, although there was evidence of continued contact with their father.

The father challenged the process by which his contact applications had been brought to an end in November and December 2002. The Court of Appeal, sitting on appeal from the High Court of Justice, Family Division, considered whether the applications should remain closed despite insufficient information about what was inhibiting contact, and what course would best promote the children’s welfare.

The appeal was allowed to a limited extent. The President of the Family Division delivered the judgment, with Lord Justice Clarke and Lord Justice Sedley agreeing.

1. The court’s concern in a family case was the children’s welfare and the need to move the case forward. It was not appropriate to investigate past shortcomings or allocate blame unless that was necessary for the furtherance of the case.
2. The court lacked sufficient information to determine what was inhibiting the relationship between the father and the girls. There was no current guardian’s report and no recent involvement by a mental health expert. The appropriate course was to try a new, family-based approach rather than return immediately to adversarial adjudication.
3. CAFCASS Legal was directed to identify a psychiatrist or psychologist with family-based experience and some sympathy for mediation. The expert’s role was to be principally facilitative. Enquiry and assessment could be undertaken to identify a way forward, but a formal report for the court was not the primary purpose. The aim was to facilitate the relationship and, if possible, avoid further proceedings.
4. The court took account of section 9(6) of the Children Act 1989, under which making a contact order after a child reaches 16 is exceptional. The girls nevertheless had to be considered both separately and together. Section 1(5) also required the court to make an order only if doing so was better for the child than making no order.
5. It was unsatisfactory for the contact applications to have been brought to an end in the circumstances. The father’s applications were therefore reinstated and adjourned generally. The parties were to consider a list of experts supplied by CAFCASS Legal, while informal contact between the father and the girls could continue. There was no order for costs.

• Court of Appeal (Civil Division) — Permission to appeal was granted and the appeal was allowed to the limited extent that the father’s contact applications were reinstated and adjourned generally: [2003] EWCA Civ 928.
• High Court of Justice, Family Division — The father’s contact applications had been brought to an end in November and December 2002. The appeal challenged that process.