G (A Child)

In child-welfare appeals, the Court of Appeal should not interfere with a contact decision merely because another outcome is arguable or disappointing. The question is whether the first-instance judge was plainly wrong, having assessed the child’s welfare and the relevant evidence.

Under section 4 of the Children Act 1989, a parental responsibility order cannot be suspended. Where immediate exercise of parental responsibility is inconsistent with the child’s welfare, the court may adjourn the application with liberty to restore, using undertakings or specific issue orders to regulate matters meanwhile.

The father sought orders concerning his seven-year-old son. The child had been raised with the mother’s cohabitee acting as his psychological father, while the father had pursued contact since 2002. Contact had developed to twice monthly before the final hearing.

After a three-day hearing at Truro County Court, His Honour Judge Rucker ordered residence in favour of the mother, direct contact twice yearly, indirect contact twice yearly, and a family assistance order. He also apparently granted the father parental responsibility but suspended its operation on terms requiring the mother to provide information.

The father sought permission to appeal the contact and parental responsibility decisions. The central issues were whether the contact decision was plainly wrong and whether parental responsibility could properly be granted subject to suspension.

1. Contact. Hedley J, with Thorpe LJ and Moses J agreeing, refused permission to appeal against the contact order. The lower court had considered the father’s proper conduct, commitment and developing relationship with the child, the mother’s genuine and likely persistent opposition, the effect of adult hostility, and the jointly instructed expert evidence. The criticisms advanced on behalf of the father identified arguable disadvantages but addressed only part of the welfare balance. The judge’s decision, focused on what was best for the child, was not plainly wrong.
2. Welfare assessment. Applying sections 1(1) and 1(3) of the Children Act 1989, the lower court was entitled to assess the issue through the child’s eyes. It had to weigh the potential benefit of an embryonic relationship against the hostility, reluctance, anxiety and intransigence likely to accompany each step of the relationship. The cost of that balance would be borne by the child.
3. Parental responsibility. The lower judge’s apparent order under section 4 of the Children Act 1989 was legally unsatisfactory. A parental responsibility order is not susceptible of suspension. Although the classic considerations of commitment, attachment and motive could be resolved in the father’s favour, the ultimate welfare question could not be resolved in favour of granting an order whose exercise was inconsistent with the child’s welfare. Any practical limitation could instead be addressed by specific issue orders.
4. Disposition. Permission was granted in relation to parental responsibility. The order was set aside to that extent and replaced by an order adjourning the father’s application with liberty to restore. Restoration was available if the mother’s undertakings were not given or complied with, or if circumstances materially changed, including through an adoption application. The contact order remained undisturbed.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 745, permission to appeal the contact order was refused. Permission was granted concerning parental responsibility, and the order was set aside and replaced by an adjournment with liberty to restore.
• Truro County Court: His Honour Judge Rucker made residence, contact and family assistance orders, and apparently granted parental responsibility subject to suspension and information requirements.