B (a child) O (children), Re

In family proceedings, the child’s welfare remains paramount. Contact with a non-resident parent is generally in the child’s best interests, and compelling evidence is needed before refusing it. Clear and mature wishes may justify refusing contact where an order would be disobeyed or counter-productive, particularly where the breakdown is attributed to the parent’s conduct rather than parental alienation. A restriction under section 91(14) of the Children Act 1989 may be renewed to protect children from repetitive litigation causing emotional harm, after proper notice and review. On permission applications, the Court of Appeal does not retry facts or substitute its assessment for the trial judge’s. It asks whether there was material supporting the decision and whether the judge was plainly wrong.

Two fathers, each acting in person, sought permission to challenge family orders concerning contact with their children. Mr Bradford challenged orders made by His Honour Judge Hunt on 6 February 2006 in Leeds County Court. Mr O’Connell challenged directions and a substantive order made by Coleridge J on 22 February and 29 March 2006 in the Bournemouth High Court, including a renewed section 91(14) restriction.

In Mr O’Connell’s earlier proceedings, the Court of Appeal had allowed an appeal concerning the refusal of a McKenzie friend and directed a fresh hearing before another judge: [2005] EWCA Civ 573 and [2005] EWCA Civ 759. The central issues were whether there was material supporting the judges’ decisions and whether either judge had been plainly wrong.

All applications for permission to appeal were refused. The related application for a stay could not succeed once permission to appeal against the substantive order was refused.

1. In Mr Bradford’s case, an earlier refusal of permission by Ward LJ was binding. The order maintaining supported contact and restricting further applications therefore stood. There was no realistic prospect of challenging Judge Hunt’s refusal of further applications. A litigant cannot obtain a different tribunal by making wild and unfounded allegations against the judge without evidential support. The passport issue had also become academic.
2. The order made by Coleridge J on 22 February 2006 had been overtaken by the substantive order, but was examined on its merits. It was a proper case-management direction. The guardian had issued the section 91(14) application, and the directions ensured that Mr O’Connell received proper notice and an opportunity to respond. Any complaint that the application was premature or inadequately investigated was for the final hearing. This approach was consistent with Re M (minors) (contact: evidence) and the procedure approved in Everett and Stringer, [2006] EWCA Civ 1190.
3. The Court applied the welfare test in section 1 of the Children Act 1989. Contact is generally in a child’s best interests, and compelling evidence is required before it is refused. Coleridge J had ample evidence, including his direct meeting with the children, to find that their opposition was genuine, that it resulted from their father’s conduct rather than maternal alienation, and that an order would be disobeyed and counter-productive. Further psychological evidence was unnecessary. The children were well adjusted, there was no demonstrated need for assessment, and they would not co-operate.
4. Article 6 had not been infringed. Mr O’Connell received a fresh hearing, had the assistance of a McKenzie friend and had a full opportunity to present his case. His decision to leave before the proceedings concluded did not establish unfairness. Orders under section 8 and section 91(14) of the Children Act 1989 engaged Article 8 rights, but Coleridge J had properly balanced the competing rights and the children’s welfare.
5. Coleridge J had followed Re P (Section 91(14) Guidelines) (Residence and Religious Heritage), [1999] 2 FLR 573, and was entitled to reimpose the restriction until 8 October 2009. Repetitive litigation, disregard of the children’s wishes, lack of insight and the real risk of emotional harm justified the order. The Court of Appeal could not interfere with the trial judge’s factual assessments or discretionary conclusions. The wider observations concerning transparency, fathers and parental alienation were general guidance rather than necessary to the orders.

1. Court of Appeal (Civil Division): On 25 August 2006, Wall LJ, sitting alone, refused Mr Bradford’s application for permission to appeal and Mr O’Connell’s applications for permission to appeal against the directions and substantive order. The related stay application also failed.
2. Court of Appeal (Civil Division): In the earlier proceedings concerning Mr O’Connell, the court allowed an appeal concerning a McKenzie friend and the section 91(14) restriction, and directed a fresh hearing before Coleridge J or another judge: [2005] EWCA Civ 573 and [2005] EWCA Civ 759.
3. Bournemouth High Court: On 29 March 2006, Coleridge J dismissed Mr O’Connell’s applications for removal of the guardian, expert assessment, contact, residence and shared residence, and made a section 91(14) order lasting until 8 October 2009.
4. Leeds County Court: On 6 February 2006, His Honour Judge Hunt dismissed Mr Bradford’s applications concerning contact, schooling, religious observance and provision of a transcript.