F (a child)

Indirect contact may be ordered even where direct contact is refused, provided that the arrangements protect the child’s welfare and, where necessary, the anonymity and safety of the child and carer. Such contact may preserve a positive family link and is not inherently a step towards increased contact. On appeal, a challenge that the first-instance judge misunderstood the evidence or that protective arrangements are unsafe requires an evidential foundation. The appellate court will not replace evidence with assertions by counsel, particularly where objections were not raised when the draft judgment was circulated or by an application to adduce further evidence. The child’s welfare remains paramount, but the need for evidence cannot be displaced by assertion.

The mother appealed against the President of the Family Division’s order permitting limited, carefully controlled indirect contact between the father and F. Direct contact had been refused because of the father’s history of serious violence and the risk that contact arrangements could reveal the mother’s and child’s whereabouts. The President had also revoked the father’s parental responsibility and made an order under section 91(14) of the Children Act 1989; those orders were not appealed.

The mother and the Guardian argued that the arrangements through CAFCASS Legal were unsafe, that indirect contact was inconsistent with F’s welfare and the other orders, and that the President had misunderstood the Guardian’s changed recommendation. The central issues were whether those challenges had an evidential basis and whether the indirect-contact order should be set aside.

The Court of Appeal unanimously dismissed the appeal.

1. Safety of the transmission arrangements. The President had been expressly concerned to prevent the father discovering the whereabouts of the mother and F. He had made enquiries and concluded that CAFCASS Legal could provide a suitable and secure conduit. The appellate court would not assume that those arrangements were inadequate merely because counsel asserted that personnel or resources might change. Any such concern should have been raised when the draft judgment was circulated, or supported by further evidence.
2. Indirect contact and welfare. The refusal of direct contact did not make limited indirect contact impermissible. The President was entitled to balance the father’s Article 8 rights against the paramount consideration of F’s welfare. Carefully vetted communications could preserve a positive memory of the father and paternal family without being treated as a stepping-stone to increased contact. The order was framed to protect anonymity and permitted the intermediary to refuse inappropriate material.
3. Guardian’s evidence. The Guardian’s earlier reports supported indirect contact if it could be safely managed. Her later change of position, after seeing closed material, focused principally on the risk that contact might enable the father to trace the family. The evidence, oral note and written submissions provided no proper basis for saying that the President had misunderstood her case. The appeal could not succeed on counsel’s assertion alone.
4. Further guidance. Lord Justice Thorpe recognised the importance of the mother’s subjective sense of security, since F’s wellbeing depended upon it. However, the arrangement had already been partly and successfully implemented, and any harmful consequences could be addressed by an application to vary the order. No principled basis for appellate intervention had been demonstrated.

• Court of Appeal (Civil Division): Permission to appeal was granted at the hearing. The appeal was dismissed and the President’s limited indirect-contact order was upheld: [2006] EWCA Civ 1426.
• High Court, Family Division: On 22 March 2006, the President refused direct contact but ordered limited indirect contact through CAFCASS Legal. He also revoked the father’s parental responsibility and made an order under section 91(14) of the Children Act 1989, against which there was no appeal.