K (A Child)

In a child-contact application, a judge must evaluate evidence on both sides and give reasons addressing material factors bearing on the child’s welfare. The starting point is the need in principle for a child to have some relationship with both parents and an informed sense of identity. A parent’s dishonesty, breaches of court orders and the risk of inappropriate disclosure during supervised contact may be significant. Those matters must nevertheless be weighed against evidence of a good relationship, successful earlier contact, later compliance, and the child’s wishes and feelings. A short judgment may be set aside where it omits such countervailing features, even if the conclusion might ultimately be correct.

A father sought renewed direct contact with his eight-year-old daughter, in addition to existing indirect contact. Leeds County Court refused the application and also refused a proposed specific issue order concerning the child’s surname, although the surname appeal was later abandoned.

The contact dispute arose against a background of the father’s serious past misconduct, imprisonment for breaches of court orders, and continuing cohabitation with the child’s maternal grandmother. The child was unaware of that relationship. The guardian supported renewed supervised contact, while the mother opposed it. The central issue was whether the judge’s short ex tempore judgment had properly evaluated the risks and the evidence supporting contact.

Permission granted; appeal allowed on the contact issue. The refusal of the father’s application for renewed supervised contact was set aside and the application was remitted to the High Court, Leeds District Registry, for rehearing before Moylan J. The surname appeal was not pursued.

1. The Court of Appeal accepted that the judge was entitled to rely on the father’s continuing denial of serious breaches previously found against him. The judge could conclude that the father was dishonest and could not be trusted to behave appropriately during supervised contact. The judge was also entitled to regard the father’s relationship with the maternal grandmother as presenting a risk of harmful disclosure. Supervision could not necessarily prevent a sudden disclosure.
2. Those adverse matters had to be placed alongside the evidence supporting contact. The judgment did not mention that the child had enjoyed a good relationship with her father, had lived with him for more than a year, and had experienced two earlier supervised contacts which proceeded well. It also omitted the absence of evidence of further breaches after the father’s release, the child’s appreciation of his presents and cards, her earlier requests to see him, and the fact that she had never said that she did not want direct contact resumed.
3. The judge also failed to refer to the court’s starting point in a contact inquiry: the need in principle for a child to have some relationship with both parents and at least an informed sense of her own identity. The omission of these material matters meant that the determination could not stand, although the judge might ultimately reach the same conclusion after a proper assessment.

The rehearing was listed for 28 and 29 June 2010. Moylan J was to decide whether the oral evidence needed to be heard again.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 478, permission was granted and the appeal was allowed on the contact issue. The refusal of renewed supervised contact was set aside and remitted for rehearing.
• Leeds County Court: His Honour Judge Cliffe refused the father’s application for direct contact by an order made on 18 September 2009, dated 22 September 2009. A proposed appeal concerning the child’s surname was abandoned.