C (A Child), Re

Where a child with an autistic spectrum disorder rejects contact with a parent whose conduct is not reasonably criticised, and the rejection has no explicable basis apart from the disorder, a court should not make an order effectively cutting off contact without expert guidance. The guidance should address the disorder and the desirability, feasibility, nature and timing of attempts to restore the relationship. A child’s expressed wishes and need for respite remain important, but the court must assess whether it is sufficiently informed to judge the child’s long-term interests. Separate representation may be appropriate where existing CAFCASS involvement has lost the child’s confidence or would be counterproductive. A restriction on further applications under section 91(14) also requires a properly informed exercise of discretion.

R, aged 14, had Asperger’s syndrome and lived with his mother. He had refused direct contact with his father, despite findings that the father had done no wrong and that the mother was not hostile to contact.

On 2 November 2004, HHJ Cliffe dismissed the father’s applications for a defined contact order, expert involvement, appointment of a guardian and transfer to the High Court. He also made an order under section 91(14) of the Children Act 1989 preventing further applications until 1 August 2005. The father appealed, raising the need for expert evidence, separate representation and reconsideration of the restriction on applications. On appeal, the mother conceded that the restriction should be discharged, that R should be joined and that NYAS should be appointed guardian. The central issue was whether the proceedings could properly be concluded or restricted without expert assessment of R’s disorder and its effect on contact.

Potter LJ gave the leading judgment and Wall LJ agreed. Permission to appeal was granted and the appeal was allowed in relation to the section 91(14) order and the dismissal of the father’s application.

1. Expert guidance. Where a child with an autistic spectrum disorder displays dislike or distrust of a parent whose conduct is beyond reasonable criticism, and the reaction has no explicable basis other than the disorder, it is wrong in principle to make an order effectively cutting off contact without expert guidance. The expert should advise on the effects of the disorder and on the desirability, feasibility, nature and timing of attempts to persuade the child to resume the relationship. The judge was not entitled to proceed confidently on the basis that R’s adamant opposition and a period of respite were necessarily in his long-term interests without such assistance.
2. Section 91(14). The father relied on the guidance in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 592 and the observations in Re C (Prohibition on Further Applications) [2002] EWCA Civ 292. The court broadly accepted the submissions. Potter LJ observed that, had the judge reached his view on a fully informed basis and had there been no reason to expect change during the limited period, he had jurisdiction to make the order. The court did not need to determine the remaining points because the mother conceded that the order should be reversed. The decisive error was the judge’s insufficiently informed overall approach.
3. Separate representation. Although the practice direction ordinarily required requests to be made to CAFCASS Legal, this was an exceptional case in which appointment of a CAFCASS officer was inappropriate. R had lost faith in the existing officer, further intervention might be counterproductive, and R had asked for someone to listen to and understand his position. R was therefore joined as a party and NYAS was appointed guardian. NYAS could investigate the papers, mediate between R and his father and obtain appropriate expert advice in due course.
4. Transfer and final directions. Transfer to the High Court was refused. Concerns about judicial continuity were met by directing that any further application should be heard by a different judge. The order dismissing the father’s application was set aside, the papers were to be supplied to NYAS within seven days, and the matter was to be listed in York County Court after 1 April.

1. Court of Appeal (Civil Division) granted permission to appeal and allowed the appeal against the section 91(14) order and the dismissal of the father’s application in [2005] EWCA Civ 300. R was joined as a party and NYAS was appointed guardian.
2. York County Court, HHJ Cliffe, dismissed the father’s applications on 2 November 2004 and made a section 91(14) order restricting further applications until 1 August 2005.