B (Children), Re

In a children case, an appellate court will not grant permission to challenge a discretionary contact decision merely because a different arrangement was available. A decision for a period of indirect rather than supervised direct contact may properly fall within the judge’s discretion where it reflects the welfare evidence and gives the parent a realistic route to rebuild the relationship.

Technical objections to protective and procedural orders may have merit, but permission may still be refused where the orders are proportionate to the children’s welfare and the need to protect their primary carer. The welfare approach is compatible with Article 8 because the rights of the parent, children and primary carer must be balanced, with the children’s welfare paramount.

The father applied for permission to appeal orders made by His Honour Judge Taylor in the Middlesbrough County Court concerning two young children. The orders addressed residence and contact, restrained the father from threatening or harassing the mother, and included a power of arrest. The judge also imposed an order under section 91(14).

The children lived with their mother. Earlier efforts to establish supervised contact had failed after the father breached conditions intended to reassure the mother. Although a CAFCASS officer had initially supported supervised contact, she later recommended that there should be no direct contact. The judge ordered a defined period of indirect contact, intended to provide a route towards restored direct contact if the father acted responsibly.

The proposed appeal challenged the amended transcript, the contact arrangement, the procedural basis of the protective orders, and the compatibility of the welfare checklist with Article 8.

1. Permission to appeal was refused. The County Court judge’s decision to require indirect contact for a period, rather than restore supervised direct contact immediately, was plainly within the proper ambit of his discretion. It accorded with the CAFCASS officer’s final recommendation and gave the father an opportunity to demonstrate responsibility before any progression towards direct contact or parental responsibility.

2. The challenge to the approved transcript disclosed no arguable error. A judge who has delivered an extempore judgment may correct the transcript within reasonable bounds, including by removing infelicities or reflecting further consideration.

3. The court accepted that the father’s complaints about the procedural foundation of the injunctions and the section 91(14) order might have technical merit. They did not, however, justify permission. The orders formed part of a proportionate welfare-based response: they protected the mother as primary carer, discouraged intimidation, and preserved a structured opportunity for the father to rebuild the relationship with the children.

4. The Article 8 challenge was untenable. The judge had to balance the family-life interests of the father, the children and the primary carer. Strasbourg jurisprudence did not displace the established domestic approach that the children’s welfare is the paramount consideration when the court exercises its discretion.

5. No order for costs was made.

• Court of Appeal (Civil Division) — refused the father permission to appeal: [2005] EWCA Civ 719.
• Middlesbrough County Court — His Honour Judge Taylor made orders concerning residence and contact, an injunction restraining threats or harassment, a power of arrest, and an order under section 91(14).