K (Children)

In residence and contact disputes, the child’s welfare is paramount. Expressed wishes do not automatically determine the outcome, particularly where pressure or influence may have shaped them. Patient and sensitive efforts should be made to overcome such influences. However, where a child has developed a real fear or antipathy towards contact which cannot be overcome without substantial distress or harm, the court may and should refuse direct contact. Article 8 does not require contact where refusal is lawful, pursues the legitimate objective of child health and protection, and is necessary and proportionate. Permission to appeal is assessed by reference to the welfare evidence and circumstances at the final hearing; delay and earlier orders do not compel a different result.

The father sought permission to appeal against Bracewell J’s order of 13 May 2005. She dismissed his applications for residence orders concerning his two daughters, ordered that there be no direct contact until further order, and provided for reasonable indirect contact.

The proceedings had involved prolonged litigation, repeated breaches of contact orders, professional assessments, family assistance orders and attempts to restore contact. By the final hearing, the children were fearful of and strongly resistant to direct contact. The father argued that the refusal breached his rights under Articles 6 and 8 of the European Convention of Human Rights and that the delay required appellate intervention. The central issue was whether the judge had been entitled to refuse direct contact on the welfare evidence then available.

The renewed application for permission to appeal was refused. There was no error of principle in Bracewell J’s decision and no arguable ground for intervention. There was no order for costs.

1. In disputes about residence and contact, the welfare of the child is paramount. The court must not automatically follow a child’s expressed wishes, particularly where the child may have been subjected to pressure or influence. Patient and sensitive professional efforts may be required to overcome such influences.
2. Where, however, a child has formed a real fear or antipathy towards contact which cannot be overcome without substantial distress or harm, the court can and should refuse an order for direct contact. That conclusion may apply even where the fear or antipathy has resulted from improper influence.
3. Article 8 required the judge to respect the father’s family life and to ensure that any interference was lawful, pursued the legitimate objective of child health and protection, and was necessary and proportionate. Article 8 did not preclude refusal of direct contact where the welfare evidence required that outcome.
4. Article 6.1 did not prescribe a fixed timetable for cases of this complexity. The acceptable period depended on the complexity of the case, what was at stake and the conduct of the parties. Section 12 of the Children Act established that delay was likely to prejudice the child’s welfare. Nevertheless, permission to appeal depended on the merits and welfare position as presented at the final hearing.
5. The judge had properly assessed the current professional and psychiatric evidence, the children’s fears, the father’s conduct and the history of the litigation. She had not closed the door on future developments: indirect contact remained available, and the children might later form an independent view as they became older.

• Court of Appeal (Civil Division) — Refused the renewed application for permission to appeal against the order below; no order for costs. [2005] EWCA Civ 1691.
• High Court, Family Division (Bracewell J) — On 13 May 2005, dismissed the father’s applications for residence orders, ordered no direct contact until further order, and provided for reasonable indirect contact.