S (a child), Re

A court should not abandon efforts to establish or restore contact between a child and a non-resident parent until it is clear that continued efforts will not benefit the child. The child’s welfare remains paramount, and proportionality limits the lengths to which contact may be pursued.

There is no presumption that separated parents should have equal time with a child. The court must retain flexibility to determine the form and extent of contact in the child’s individual interests.

An order under section 91(14) of the Children Act 1989 is draconian. It must be used sparingly, for the child’s benefit, and proportionately to a demonstrated risk of harm or unacceptable strain.

The father appealed from an order of the Middlesborough County Court dismissing his application for direct contact with his six-year-old daughter. The Recorder ordered indirect contact, refused a psychological assessment and prohibited further section 8 applications without leave for one year under section 91(14) of the Children Act 1989.

The parents had previously arranged regular contact, but their relationship deteriorated. The child subsequently resisted supervised contact. The Recorder found that the father’s wish for contact was genuine and that the mother, who opposed contact, had communicated her beliefs to the child. Nevertheless, he effectively brought attempts at direct contact to an end.

The central questions were whether it was premature to abandon efforts to restore the relationship, whether a family-wide psychiatric assessment should be obtained, and whether the section 91(14) restriction was justified.

1. Appeal allowed unanimously. The Court directed a joint instruction of a consultant child and adolescent psychiatrist to assess the family and the prospects of future contact. It restored the case to a circuit judge after the report and set aside the section 91(14) order.

2. Per Dame Elizabeth Butler-Sloss P, with whom Thorpe and Carnwath LJJ agreed, the child’s welfare is the paramount consideration under section 1 of the Children Act 1989. Where the article 8 interests of parents and child require balancing, the child’s interests must prevail. The court must nevertheless recognise the importance of a child’s relationship with a non-resident parent, provided that contact remains compatible with the child’s rights and welfare.

3. Contact must be determined flexibly according to the circumstances of the individual child. There is no presumption that a child should spend equal time with each parent. The court should not abandon an attempt to promote contact until it is clear that the child will not benefit from continuing the attempt. Proportionality remains essential: the court may stop where continued efforts are having a disproportionately adverse effect on the child.

4. The Recorder’s findings did not justify closing the door on contact. He had found the father’s motivation genuine, the incidents alleged against him relatively minor, and the mother principally responsible for the failure of contact. Given the child’s age and her earlier relationship with the father, it was premature to abandon any realistic prospect of restoring contact.

5. The required assessment was not confined to whether the child had a psychological disorder. It had to examine the child within the family context, including the parents’ hostility, the sources of the child’s opposition, the father’s aggressive and unrealistic approach, and whether each parent could adopt conduct conducive to safe contact.

6. A section 91(14) restriction is a draconian discretionary measure. It must be used carefully, sparingly and proportionately in the child’s best interests. Where the restricted parent has not behaved unreasonably, ordinary animosity or a routine need for settling time is insufficient. There must be a serious risk of unacceptable strain to the child or primary carers. No evidence established such a risk here.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 18, unanimously allowed the appeal to the extent of directing a family-wide psychiatric assessment, restoring the proceedings to a circuit judge and setting aside the section 91(14) restriction.

2. Middlesborough County Court: Mr Recorder Bullock dismissed the father’s application for direct contact, ordered indirect contact, refused a psychological assessment and imposed a one-year restriction under section 91(14) of the Children Act 1989.