S (A Child)

In child-contact proceedings, a judge has a broad discretion to choose a procedure suited to the issues and evidence. Contact applications may be determined with limited or no oral evidence. Where the child’s interests require a prompt and conventional interim arrangement, the judge may engage litigants in person in constructive dialogue and make an order subject to review. This discretion is bounded by the right to present a case fairly; robust case management must not become obstruction. A prior agreement or order for contact is relevant when assessing whether a parent has shown a welfare-based reason for ending or restricting contact.

The father appealed against an order made by HHJ McDowell in the Willesden County Court on 21 July 2006 in proceedings under the Children Act 1989. The proceedings concerned contact between his young son and the child’s maternal grandmother and half-sister. The order recorded reasonable contact by consent and, otherwise than by consent, provided for contact on alternate Saturdays.

The father argued that he had not consented to reasonable contact and that the judge had acted unfairly by determining the arrangements without fuller evidence, adequate notice, witness statements or a CAFCASS report. Subsequent proceedings and a CAFCASS report meant that the appeal had become academic, but the court considered the merits. The central issue was whether the judge had been entitled to adopt a robust, dialogue-based and interim procedure in the circumstances.

1. Disposition. The appeal was dismissed. It had become academic because Judge Copley had begun a further enquiry into the merits of contact, and the grandmother undertook not to enforce the order unless and until permitted to do so. The court nevertheless considered the substance of the appeal.
2. The father’s complaint that the grandmother lacked leave under section 10 of the Children Act 1989 failed because leave had already been granted. Although it was borderline whether he had consented at the hearing to an order for reasonable contact, that question was immaterial. He had consented to reasonable contact in 2005, and existing orders indicated that contact was regarded as being in the child’s interests. He had not presented even a prima facie case explaining why that position had changed. His refusal of contact had also been expressly linked to a financial dispute under the Inheritance (Provision for Family and Dependants) Act 1975, rather than to the child’s welfare.
3. The father’s fair-hearing objections under Article 6 of the European Convention on Human Rights 1950 were arguable. The judge could have adjourned the matter for witness statements and a CAFCASS report, particularly since the father had received an incomplete application only two days before the hearing. However, family judges have a broad discretion to select the procedure appropriate to the issues and evidence. As explained in Re B (Minors) (Contact) [1994] 2 FLR 1, contact applications may be heard with or without oral evidence, or with limited oral evidence.
4. That discretion entitled the judge, faced with unrepresented parties, to initiate a constructive dialogue and make a conventional interim contact arrangement subject to review. The boundary was the line between assisting parties to reach a sensible arrangement and improperly obstructing their opportunity to present their case. Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289 illustrated the latter, whereas the conduct in the present case fell on the legitimate side of the line. The judge’s warning against denigration and his observation concerning door-to-door proselytising were permissible welfare-related comments.

1. Court of Appeal (Civil Division): Appeal from the Willesden County Court was dismissed. [2007] EWCA Civ 267.
2. Willesden County Court: HHJ McDowell made the order dated 21 July 2006 providing for reasonable contact and alternate-Saturday contact arrangements.