B (A Child), Re

In unusual and extreme family circumstances, a court may properly make no order for contact where the evidence shows that unsupervised contact is harmful and the primary carer is best placed to decide whether supervised contact will benefit the child. The court must consider the distress and relational harm caused by stopping contact, but may conclude that continued unsupervised contact is more harmful. The absence of an order may reduce repeated applications to vary arrangements. A Children Act 1989 section 91(14) order may be made alongside no order for contact and other protective orders where continuing proceedings would expose the child and primary carer to further stress. An observation concerning the appearance of justice does not create a general requirement to impose a contact order.

The parents separated in 2005 and the child lived with the mother. The father had been exercising unsupervised contact. Following extensive findings that his conduct was unreasonable, harmful, persistent and unlikely to change, Portsmouth County Court made no order for contact.

The court also made an injunction under the Family Law Act 1996, a specific issue order, a prohibited steps order and a section 91(14) order restricting further applications. The father appealed, challenging the no-contact order, the treatment of the evidence and the section 91(14) order. The central issues were whether making no order was a proper exercise of discretion and whether the restriction on further applications was permissible alongside it.

Appeal dismissed. Lady Justice Black held that the judge had properly exercised her discretion.

1. The unchallenged findings demonstrated continuing unreasonable behaviour by the father, with actual and potential harm to the mother and child. Unsupervised contact could not safely continue because the father’s behaviour towards the child required monitoring and control which could not be provided by a family member. The mother was best placed to assess whether supervised contact would benefit the child, and the judge was entitled to rely on her commitment to promote contact while protecting the child (paras [6]–[14]).
2. Making no order was permissible despite the unusual circumstances. The judge had considered the distress caused by loss of contact and the risk of damage to the child’s long-term relationship with her father. She was entitled to conclude that, while the father’s conduct remained unchanged, continued unsupervised contact was more harmful than stopping it. The absence of an order also reduced the risk of further applications to amend or vary prescribed arrangements (paras [15]–[17]).
3. The possibility that restrictions had contributed to the father’s behaviour did not require the court to impose a contact order. Re B, Re O [2007] 1 FLR 530 did not establish a general principle that an order was imperative to avoid disempowering a parent without primary care or undermining cooperation. The present case turned on its own facts (paras [19]–[21]).
4. In light of the overall findings, the judge was also entitled to make a section 91(14) order protecting the mother and child from the stresses and strains of continuing proceedings, even alongside no order for contact and other restrictions. The judge had identified the correct principles in Re P and properly applied them (para [21]).

Lord Justice Thorpe agreed. The appeal was dismissed.

• Court of Appeal (Civil Division): heard the father’s appeal against the orders made by Portsmouth County Court on 7 October 2010 and dismissed the appeal.
• Portsmouth County Court: made no order for contact and imposed associated protective and procedural restrictions.