CE (a child), Re

In child-contact litigation, an appellate court should respect the trial judge’s evaluation where the judge has maintained continuity, considered the relevant welfare factors and carried out a careful balancing exercise. The wishes and feelings of children are important, but they do not determine the outcome where the court concludes that contact would not serve their long-term welfare. A restriction under section 91(14) of the Children’s Act 1989 is not a bar to issuing an application; it requires the applicant to obtain the court’s prior permission. The possibility of future permission may remain where circumstances materially change, including where a parent seeks appropriate help and gains insight into the difficulties affecting contact.

The father sought permission to appeal from an order of the Worcester County Court, made by His Honour Judge Rundell on 6 November 2006. The order halted the proceedings, prohibited further direct contact for a significant period and imposed a restriction under section 91(14) of the Children’s Act 1989 until 1 January 2009.

The case followed around four and a half years of repeated litigation concerning contact between the father and his children. The judge had consistently found that the difficulties were substantially attributable to the father’s conduct and continuing views. Although the children wished to maintain contact and the guardian initially recommended exploratory supervised sessions, the guardian later supported the order in the interests of finality. The central issue was whether the judge had been wrong to refuse supervised contact and to impose the section 91(14) restriction.

1. Permission and disposition. Permission to appeal was granted, but the appeal was dismissed. The Court of Appeal agreed with the order made below.
2. Deference to the trial judge. The decision concerned a highly fact-sensitive welfare assessment. His Honour Judge Rundell had maintained judicial continuity over several years and had delivered successive careful judgments. He was therefore well placed to understand the nuances of the family’s circumstances. The appellate court recognised the considerable advantage of continuity in a case involving repeated contact litigation.
3. Welfare assessment. The judge had considered the factors favouring the father, including the children’s wishes and feelings, which he regarded as the most formidable aspect of the application. Those wishes remained important, but the judge was entitled to conclude that the children’s overall long-term welfare would be better served by ending the present proceedings and making no further direct-contact order for a significant period. He was also entitled to reject the guardian’s recommendation where, in his assessment, it placed too much emphasis on the children’s wishes and feelings and underestimated the future impact of continued supervised contact while the father maintained his existing views and prejudices.
4. Section 91(14). The restriction under section 91(14) of the Children’s Act 1989 did not prevent the father from issuing an application altogether. It operated as a bar on issuing an application without prior permission. A future application for permission could properly be considered if the father sought help, gained insight and thereby established a material basis for reconsidering contact.
5. The Court of Appeal observed that any possible criticism of the judge’s decision had been removed by subsequent developments, including the guardian’s revised position and the children’s acceptance of the outcome without apparent distress.

• Worcester County Court: His Honour Judge Rundell’s order of 6 November 2006 halted the proceedings, prohibited further direct contact for a significant period and imposed a restriction under section 91(14) of the Children’s Act 1989 until 1 January 2009.
• Court of Appeal (Civil Division): Permission to appeal was granted, but the consequential appeal was dismissed. The order below was upheld.