A-H (Children)

In an intractable child-contact dispute, the court recognised a duty to foster a child’s relationship with a parent where that relationship is appropriate and in the child’s best interests. That duty did not justify substituting a different order for one made by an experienced High Court judge exercising a broad discretion in a sensitive case. The appeal was therefore dismissed. However, the father was permitted to disclose the papers to NYAS, which could provide independent assistance, advise on contact and, if necessary, seek party status. A restriction under the Children Act s 91(14) did not prevent that course.

The father applied for permission to appeal against an order made by Coleridge J on 15 October 2007 concerning contact with his two daughters. An earlier order of 8 February 2007 required fortnightly visiting contact with the elder child, C, and indirect contact with the younger child, R. It also included a Children Act s 91(14) restriction on further applications without leave.

In October 2007, the fixed contact order for C was discharged and arrangements were left largely to C and her mother. The children’s guardian had previously been discharged. The father argued that the arrangements had failed and that independent assistance was required. The central questions were whether the Court of Appeal should interfere with the judge’s exercise of discretion and what steps could properly be taken to support the children and future contact.

Disposition. Wall LJ gave the leading judgment. Richards LJ and Sir Paul Kennedy agreed. The appeal was dismissed, but the father was permitted to disclose the papers to NYAS, which was at liberty to advise on future progress and, if necessary, apply to be joined as a party.

1. Appellate restraint. Coleridge J had exercised a broad discretion after extensive involvement in a sensitive and difficult contact dispute. Although the Court of Appeal was concerned by aspects of the October 2007 order, including the lack of effective arrangements for R and the failure of the arrangements for C, it was inappropriate to impose a different order. If variation was required, it was for Coleridge J to make it.
2. Best interests and contact. The court had a duty, where possible and consistent with the children’s best interests, to foster their relationships with their father. The papers disclosed no inappropriate aspect of those relationships. This concern justified securing proper assistance, but not substituting a different contact order.
3. Independent assistance. Discharging the rule 9.5 guardian had left no independent mechanism to assist C or R, monitor implementation or present the children’s views. NYAS could review the papers, advise and assist the parties and children, facilitate sensible contact arrangements, and decide whether further involvement or party status was needed. It could decline involvement if it identified no useful role.
4. Section 91(14) and the no-order principle. The combination of a Children Act s 91(14) restriction on further applications without leave and an approach leaving C to arrange contact herself was a serious concern. The no-order principle ordinarily operates where parties are co-operating and court intervention is unnecessary. The existing order nevertheless remained in place, with the Court of Appeal’s intervention confined to permitting NYAS involvement. NYAS was also to consider whether anything could be done for R.

• Court of Appeal (Civil Division): On 20 May 2008, the appeal was dismissed. The father was permitted to disclose the papers to NYAS, which could advise on future progress and, if necessary, apply for party status.
• Principal Registry, Family Division: Coleridge J’s order of 15 October 2007 discharged the fixed contact order for C while leaving the remainder of the earlier order, including the Children Act s 91(14) restriction, in force. The earlier order of 8 February 2007 had provided for fortnightly visiting contact with C and indirect contact with R.