C (A Child)

In contact proceedings, an order that is, in substance, a consent order is virtually incapable of being appealed. Pressure arising from intractable circumstances, including the breakdown of contact, is not thereby undue, improper or unfair pressure imposed by the judge or the court process. Where the parties have accepted that no workable contact order can be made, the appellate court cannot reopen the circumstances or compel a different outcome.

The father appealed from proceedings in the Lincoln County Court before HHJ Jenkins concerning contact with his daughter. Contact had progressively broken down following allegations of sexual abuse which had been found to be without foundation. The child opposed further direct or indirect contact and would not engage with proposed assessment or counselling.

The father ultimately accepted an order providing for no contact, but later sought permission to appeal. He alleged that he had been placed under undue, improper and unfair pressure. The central issue was whether the order and the circumstances in which it was accepted gave rise to an appealable error.

Application refused. The order below was virtually a consent order and was therefore virtually impossible to appeal against.

1. The father’s acceptance of the order followed the intractable circumstances surrounding the failed contact arrangements. The pressure was generated by those circumstances and by the practical impossibility of making contact work, rather than by any unfair pressure imposed by HHJ Jenkins or by the court proceedings.
2. HHJ Jenkins had conducted the proceedings properly. No criticism could be made of the judge, who had expressed sympathy for the father’s position. There was no other realistic order which could have been made once the father accepted that further contact would cause distress and that contact had not worked.
3. The appellate court could not put the clock back or change the underlying behaviour that had caused the breakdown of contact. There was no adequate appellate remedy in the circumstances, and the application had to be refused.
4. The lower court had made no finding that the father had sexually abused H or committed any other abuse. At the father’s request, the order recorded that fact. The Court of Appeal directed that the child’s solicitor explain the position to H, including that no blame had been laid at the father’s door, and report the consequences of that discussion to the judge. Copies of the judgment were also to be provided to the mother, guardian and father at public expense.

• Court of Appeal (Civil Division): Lord Justice Ward refused the father’s application for permission to appeal and maintained the position arising from the virtually consented order.
• Lincoln County Court: HHJ Jenkins dealt with the failed contact arrangements and made an order which the father accepted. No neutral citation was stated in the judgment.