B (A Child)

In an intractable contact case, the court must keep under review whether the child’s welfare may be assisted by separate representation. A refusal to explore that possibility is erroneous where the case has not yet reached the end of the road, there is evidence of some potential interest in contact, and the proposed preliminary exercise can be conducted on paper so that disruption is substantially mitigated. The court must balance short-term destabilisation against the child’s longer-term interests. Permission to send papers to an organisation such as NYAS for advice does not determine that the organisation will intervene or that contact will follow. Any decision to join NYAS as the child’s guardian remains a judicial decision for the trial judge.

Mr B appealed from an interlocutory decision of His Honour Judge Barratt in the Chichester County Court on 10 February 2006. The judge refused permission for the papers to be disclosed to NYAS or CAFCASS Legal so that the possibility of separate representation for B’s 12-year-old daughter, S, could be considered.

The dispute arose in longstanding proceedings concerning contact. S had not seen her father for many years. The mother opposed direct contact, the CAFCASS officer recommended against it, and S had expressed unwillingness to meet him, although the report recorded a temporary indication of interest in meeting him in controlled circumstances. The issue was whether the judge had wrongly treated the matter as having reached the end of the road and had given excessive weight to possible destabilisation.

1. Appeal allowed. The refusal to permit disclosure of the papers to NYAS was set aside. The final hearing was to be vacated, and NYAS was to advise whether it considered the case appropriate for its involvement.
2. The appeal concerned an exercise of discretion and was not an invitation to substitute the Court of Appeal’s preferred order. The question was whether the decision was outside the band of reasonable disagreement, or whether the judge had given undue weight to irrelevant matters or failed to consider highly relevant matters.
3. The judge had correctly recognised the need to consider the child’s welfare and the court’s continuing obligation not to abandon hope in an intractable contact case. However, he had not given sufficient weight to the CAFCASS report’s indication of a possible interest by S in meeting her father in controlled circumstances. That evidence supported the conclusion that the case was almost, but not actually, at the end of the road.
4. The proposed NYAS exercise was initially confined to consideration of the papers. Any disruption or emotional stress caused by postponing the final hearing could therefore be substantially mitigated. The balance between short-term destabilisation and the child’s longer-term interests required at least an investigation of whether separate representation might assist.
5. The order did not amount to a direction that NYAS must intervene or that contact should be introduced. If NYAS wished to become involved, it would have to apply to the county court to be joined as S’s guardian. That remained a judicial decision for the trial judge. NYAS involvement might also lead to advice to the father concerning the personality difficulties identified in the earlier proceedings, and failure to heed such advice could justify refusing further progress.

• Court of Appeal (Civil Division): [2006] EWCA Civ 716 allowed the appeal from the interlocutory order of His Honour Judge Barratt in the Chichester County Court, set aside the refusal to disclose the papers to NYAS, directed that NYAS advise on possible involvement, and vacated the imminent final hearing.
• Chichester County Court: On 10 February 2006, the judge refused permission for the papers to be sent to NYAS or CAFCASS Legal for consideration of separate representation for the child.