H (Children), Re

In determining whether limited indirect sibling contact promotes children’s welfare, the court must balance the potential benefit of wider family relationships against any risk of harm. A cautious, time-limited and professionally managed arrangement may materially reduce the risk. An appellate court may intervene where the judge gives insufficient reasons for rejecting a clear welfare recommendation and gives disproportionate weight to a parent’s anxiety rather than the potential benefit to the children.

RS applied for indirect contact with her half-brother and half-sister, who were cared for by their father. The children’s mother, who was also RS’s mother, had withdrawn from their lives. The father feared that contact with RS might reintroduce the mother.

A Cafcass officer recommended a six-month programme of indirect communication, managed through Cafcass, to help the children learn about their family background and relationships. Judge Bullimore refused the application. RS appealed against that refusal. The central issue was the proper welfare balance between the potential benefit of a wider family life and the risk of harm identified by the father.

1. Appeal allowed. Thorpe LJ, with whom Smith LJ agreed, held that the judge had made a fundamental error in the welfare balance. The potential benefit of a wider family life, including a relationship with RS, had not been given sufficient weight.

2. The relevant comparison was between the advantage to the children of cautiously developing their understanding of their background, heritage and family relationships, and the risk of harm. The potential benefit was real. The risk was materially reduced by the safeguards of a limited experiment supervised by the Cafcass officer.

3. The judge had accurately understood the Cafcass recommendation, but his reasons for departing from it were scant. He had elevated the father’s anxiety above the prospective gain for the children without sufficient justification.

4. The court ordered indirect contact for six months, managed by the Cafcass officer. Contact was to take the form of one communication each month.

• Court of Appeal (Civil Division): allowed RS’s appeal and substituted a six-month indirect-contact order: [2010] EWCA Civ 1200.
• Sheffield County Court: Judge Bullimore refused RS’s application for indirect contact.