C (A Child), Re

In an appeal concerning child contact, a judge exercising discretion must address current welfare evidence, including professional and guardian recommendations. A departure from the guardian’s recommendation requires an explanation. An order for immediate staying contact may be plainly wrong where it conflicts with near-unanimous professional advice, serious evidence of emotional harm, and a previously calibrated timetable, without adequate reasons for bringing contact forward. The Court of Appeal may intervene where the exercise of discretion falls outside its proper ambit or is plainly wrong.

The mother sought permission to appeal against an order made by Bournemouth County Court requiring her nine-year-old son to have immediate staying contact with his paternal grandparents. The order followed unsuccessful attempts at non-staying contact and was made despite evidence from the guardian, medical and therapeutic professionals, and the school that the child was experiencing serious distress and should have a period without contact.

The central issue was whether the judge had exercised his discretion outside its proper ambit or plainly wrongly, particularly by departing from the professional and guardian recommendations without adequate explanation.

Permission granted and appeal allowed. The order for staying contact made on 15 January 2010 was set aside.

1. The Court of Appeal could interfere with the discretionary contact order if the judge had acted outside the ambit of his discretion or had been plainly wrong. The issue was not whether another judge might have made a different order, but whether this order was properly justified on the evidence.
2. The judge had evidence from five professionals, including the guardian ad litem, the child’s general practitioner, two psychotherapists and a school representative. Their evidence was, in substance, unanimous that contact should cease temporarily. The evidence included serious concerns about the child’s emotional state, including suicidal ideation.
3. A judge departing from the recommendation of a guardian ad litem or children’s guardian must explain the reasons for doing so. The judge acknowledged that he could not disregard the professional evidence, but gave no adequate explanation for ordering staying contact to begin only three hours later.
4. The judge also failed to address why staying contact should be brought forward by several months from the carefully calibrated order made five weeks earlier. The immediate order was inconsistent with the reasoning supporting transfer of the case to the High Court and lacked evidential support for the suggestion that the grandparents would be better placed than the mother to secure the child’s return to school.
5. In the circumstances, forcing contact against the professional advice was misguided and plainly wrong. The future arrangements, including possible professionally supported contact and the father’s continuing contact, were left for consideration by the High Court judge.

Mr Justice Henderson expressed his entire and emphatic agreement with the judgment of Lord Justice Wilson.

1. Court of Appeal (Civil Division): Permission granted and appeal allowed. The immediate staying-contact order was set aside: [2010] EWCA Civ 89.
2. Bournemouth County Court: HHJ Meston QC ordered immediate staying contact between the child and his paternal grandparents on 15 January 2010.