S (Children), Re

In prolonged contact litigation, the court must act proactively where delay risks making the loss of a parent–child relationship effectively conclusive. An exceptionally difficult case may require urgent transfer to a Family Division judge rather than further delegation to a circuit judge exercising section 9 powers. The court cannot compel family therapy, but refusal to engage with reasonable proposals for renewed therapy may support adverse inferences about commitment to promoting a natural relationship. A unilateral assessment of one parent’s skills should not automatically be ordered during a therapeutic phase. If adversarial proceedings resume, the trial court should consider whether a balanced assessment is required. Where implementation, rather than investigation, is the difficulty, direct work by an appropriate advocacy service may be invited.

The father sought permission to appeal an order made by HHJ Shipley at Sheffield Combined Court Centre in January 2004 concerning contact with his two children. The litigation had lasted about seven years. Six-weekly contact with one child had not taken place, and the mother maintained that the child’s younger half-brother should accompany the father.

The application was listed before Wall LJ, who directed an oral hearing with an appeal to follow if permission were granted. The mother did not attend the appeal because of pregnancy-related medical advice. The central issues were whether the case required more active judicial intervention, whether it should be transferred to a Family Division judge, and what therapeutic, assessment and support measures could promote meaningful contact.

The application for permission to appeal was granted and the application was allowed. Mr Justice Bennett agreed with Lord Justice Thorpe.

1. Urgent judicial intervention. The passage of time in prolonged contact litigation can become effectively conclusive. The court should therefore make a major judicial effort to preserve the possibility of a meaningful relationship between parent and children. This case required urgent transfer for hearing before a Family Division judge, in London or on circuit, before 13 July 2004. It was not to be delegated again to a deputy or a circuit judge exercising section 9 powers.
2. Family therapy. The court had no power to order the mother to re-engage in family therapy. However, if reasonable proposals for renewed therapy were advanced and she continued to refuse them, the judge could draw adverse inferences about her commitment to progress towards a spontaneous and natural relationship between the father and the children.
3. Assessment. A unilateral assessment of the mother’s parenting skills was not helpful as a present option within a process intended to be therapeutic rather than adversarial. If adversarial proceedings resumed, any assessment direction was better made by the trial court and might appropriately involve both parents.
4. Implementation support. The difficulty was not limited to investigation and reporting. The case required direct work with the family to implement difficult orders. Influenced by the experience recorded by Wall LJ in A v A, the court invited NYAS to consider whether it could provide that assistance.
5. Continuing contact and orders. The contact orders for 8 May and 19 June 2004 remained in force and the visits were to take place. The order was varied only in relation to future review, without altering continuing contact. The father was invited, if safe for M, to bring M to the 8 May visit. The transcript was to be prepared at public expense and the respondent’s costs were subject to detailed assessment.

1. Court of Appeal (Civil Division) — On 5 May 2004, the court granted permission and allowed the application. It ordered urgent transfer to a Family Division judge, preserved the existing contact orders, and varied the provisions for future review.
2. Sheffield Combined Court Centre — HHJ Shipley made the January 2004 order providing limited visiting contact and arrangements for review. No citation for that order is stated in the judgment.