M (Children)

In entrenched child-contact disputes, children’s wishes and feelings carry weight according to their age and understanding, but cannot be treated as determinative where prolonged hostility has corrupted that understanding. The children’s welfare is paramount. Where one parent is being eliminated from their lives without good reason, the court must take positive and robust action. It must balance the short-term disruption of intervention against the long-term harm caused by unresolved hostility and the absence of a parental relationship. Where existing welfare evidence is inadequate or outdated, a limited psychiatric or psychological assessment may be required. In an intractable dispute involving irrational hostility and harm, the court should also consider separate representation and transfer to the High Court.

Following the parents’ separation, the two children lived with their father. An illness-related incident involving the mother, followed by a disputed contact handover, led to a complete breakdown in contact. The children remained intensely hostile towards their mother for approximately eight years. Reports identified possible alienation, concerns about the father’s failure to promote the relationship, and risks of both contact and continued separation.

On 1 March 2005, HHJ Milligan ordered limited quarterly indirect contact and reports from the father. He refused applications for a child psychiatrist, a guardian, and transfer to the High Court. The mother appealed, contending that the judge had failed to give proper effect to the children’s welfare and had treated their age and entrenched views as decisive. The central issue was whether further expert assessment and intervention were required.

Appeal allowed unanimously. Lord Justice Ward, with whom Lord Justice Scott Baker agreed, held that HHJ Milligan had been plainly wrong to conclude that further intervention was disproportionate without obtaining more up-to-date professional advice.

1. Children’s wishes and feelings ordinarily carry great weight according to their age and understanding. That weight is reduced where their understanding has been corrupted by years of malign influence and entrenched hostility. The court must assess the basis and reliability of the views expressed.
2. The children’s welfare is paramount. Where one parent is being eliminated from the children’s lives without good reason, the court must take positive action and leave no stone unturned that might resolve the situation and prevent long-term harm.
3. The court must balance the short-term disruptive harm of intervention against the long-term emotional harm arising from unresolved hostility and the absence of a relationship with a parent. Relevant considerations include the children’s age, understanding, fixedness of view, prospects of resolution, and risk to their present equilibrium.
4. The welfare evidence was inadequate and stale. The court should therefore obtain an initial psychiatric or psychological report on the papers. The expert should advise whether seeing the children and conducting a fuller inquiry would be justified, having regard to the possible risk of damage and the prospects of future contact. Expert assistance for the father and stepmother could also be considered.
5. The case was an intractable dispute involving irrational and implacable hostility and harm to the children. The court should consider joining the children as parties, appointing a guardian or NYAS to represent them, and transferring the proceedings to the High Court.

The matter was transferred to the High Court. The expert was to be agreed or nominated by the High Court judge. The indirect-contact order remained pending further order. Restrictions withholding the home and school addresses were removed, and there was no order for costs. A reporting restriction protecting the children’s identities was imposed.

• Southampton County Court: On 1 March 2005, HHJ Milligan ordered quarterly indirect contact, father’s reports and school reports, and dismissed applications for a child psychiatrist, a guardian and transfer to the High Court.
• Court of Appeal (Civil Division): The appeal was allowed. The matter was transferred to the High Court for directions and expert assessment; the indirect-contact order remained pending further order.