P (Children), Re

An order stopping direct contact between a parent and child should be made only as a last resort. Before making such an order, the court must examine the realistic alternatives and take account of relevant measures, including counselling, which may help restore contact.

An appellate court ordinarily respects a discretionary welfare decision unless the judge exceeds the generous ambit within which reasonable disagreement is possible. Intervention is justified where the judge omits a relevant factor. Restrictions on disclosure of a child’s school may also require reconsideration where they are inseparably connected with the decision about direct contact.

A father appealed from parts of an order made by HHJ Farmer QC in the Llangefni County Court. The unchallenged parts refused his applications for residence and for a specific issue order concerning the children’s schooling. The challenged parts permitted indirect contact only, withheld the identity of the children’s school and discharged the children’s guardian.

The contact proceedings had extended over several fragmented hearings. The judge’s written reasons dated 31 December 2007 were treated as supporting the order made on 7 May 2008. The judge had accepted the children’s reluctance to have direct or unsupervised contact and considered that imposing it would cause serious distress.

The central questions were whether direct contact had been stopped without adequate examination of the available alternatives and whether the associated restriction concerning the children’s school should remain.

1. Appeal allowed unanimously. The parts of the county court order governing contact, school information and discharge of the guardian were set aside. The matter was directed to be reheard, preferably by another judge.

2. An appellate court will not interfere with a discretionary welfare decision unless the judge has exceeded the generous ambit within which reasonable disagreement is possible. The two options identified by the guardian—continued contact at a contact centre or a period of indirect contact—were each tenable. The discretion was nevertheless flawed because a relevant alternative had not been properly examined.

3. Direct contact should not be stopped unless that is the judge’s last resort. Before making the order, the judge should have explored through evidence and submissions whether counselling or other therapeutic assistance might enable both parents to moderate their conflict and support renewed contact. Although the judge regarded counselling as helpful and remained willing to hear submissions about it, he made the final order before doing so. The fragmented hearings had not enabled him to grapple with the issue fully.

4. The children’s wishes and feelings were genuine and had to be considered according to their ages and understanding, as required by the Children Act. Their reluctance and anxiety made an immediate direct-contact order inappropriate. Those views did not remove the need to explore every realistic means of restoring contact before stopping it.

5. The school-identity restriction was inextricably connected with the question of direct contact and was therefore also set aside for reconsideration. Pending the rehearing, there was to be no direct contact, but the existing indirect contact was to continue. Individual email addresses for the children were suggested so communications could be made and recorded. The guardian was to remain involved.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 1431, the court unanimously allowed the father’s limited appeal. It set aside paragraphs 2 and 3 of the county court order, directed a rehearing and continued indirect contact pending that rehearing.

2. Llangefni County Court: HHJ Farmer QC refused the father’s residence and schooling applications, ordered indirect contact only, withheld the identity of the children’s school and discharged the guardian. The residence and specific issue decisions were not within the permitted appeal and remained in force.