G (A Child)

An appellate court may interfere with a discretionary child-contact order where the lower court proceeded on a material misapprehension of fact or relied on an inadequately articulated reason. A total refusal of direct and indirect contact, coupled with an excessive restriction on further applications under the Children Act, may therefore be reconsidered. The court may substitute a shorter restriction and provide staged indirect contact, enabling a parent to demonstrate calm and suitable conduct before applying for more direct contact.

Mr Goodman applied for permission to appeal against orders made by His Honour Judge Richards in the Norwich County Court on 16 March 2009. The orders provided for no contact between Mr G and his young daughter and required permission for any further application concerning contact or residence for five years.

The appeal concerned whether the residence order should be disturbed, whether the refusal of all forms of contact was justified, and whether the five-year restriction under section 91(14) of the Children Act was excessive. The Court of Appeal also considered the effect of factual assumptions about Mr G’s residence and reliance on an outdated social services report.

Lord Justice Wall delivered the leading judgment. Lord Justice Rimer and Lord Justice Thorpe agreed. Permission to appeal was granted and the appeal was allowed to the extent set out below.

1. The residence order was left undisturbed. The child had always lived with her mother in England, and there was no basis for interfering with that arrangement.
2. The judge had exercised a discretion, and the Court of Appeal recognised the importance of his opportunity to observe Mr G and the mother’s anxiety. Nevertheless, the decision had proceeded on a potentially inaccurate assumption that Mr G was resident in Panama. The refusal of indirect contact appeared to rely on a social services report more than two years old, stating that contact could not be monitored. No satisfactory reason was given for refusing direct or indirect contact.
3. Those matters amounted to an error of principle. The complete cessation of contact was excessive, as was the five-year restriction imposed under section 91(14) of the Children Act.
4. The five-year period was replaced by two years. During that period Mr G was permitted to send cards and small presents at Easter, on the child’s birthday and at Christmas. The communications and gifts were to be calm and suitable, and Mr G was expected to accept that the child would live with her mother throughout her minority and comply with the order.
5. After two years, Mr G could apply for more direct contact. Any initial face-to-face contact might require supervision. The court emphasised that the mother’s concerns could justify a staged approach, while suitable conduct and acceptance of the existing arrangements could support a later enlargement of contact.

Order: application granted; appeal allowed.

• Court of Appeal (Civil Division): Permission granted and appeal allowed. The five-year restriction was reduced to two years, with provision for indirect contact during that period.
• Norwich County Court: On 16 March 2009, His Honour Judge Richards ordered no contact and required permission for further applications concerning contact or residence for five years.