K (Children), Re

Direct contact between a parent and child is a fundamental part of family life, but may be refused where exceptional and cogent welfare reasons make it detrimental and no reasonable alternative will protect the child. The court must promote contact where possible, examine available alternatives, and take a medium- and long-term view. Welfare remains paramount.

An appellate court will interfere with a discretionary contact decision only if it was plainly wrong. A finely balanced welfare assessment will therefore be especially difficult to challenge on appeal.

The father appealed an order made by HHJ Atkinson in Bromley County Court on 25 January 2011 prohibiting direct contact with his three children. The order followed public law proceedings under section 31 of the Children Act, prompted by concern arising from the father’s sexual offending and possession of child pornography.

The children remained with their mother under a 12-month supervision order. Those arrangements and the threshold findings were not challenged. The father contended that the judge had wrongly balanced the welfare considerations and should have adjourned for advice from a child and adolescent psychiatrist on future disclosure and contact.

1. Appeal dismissed. McFarlane J, with whom Mummery and Lloyd LJJ agreed, held that the judge’s refusal of direct contact was within the proper ambit of her discretion and was not plainly wrong.

2. The court applied the principles summarised in Re C (a child) [2011] EWCA Civ 521. Contact is ordinarily fundamental and its termination is exceptional. The judge must consider every reasonable alternative and must not abandon the attempt to secure contact prematurely. However, the child’s welfare is paramount.

3. The refusal to adjourn for a child and adolescent psychiatrist was also upheld. The children were very young and disclosure of the father’s history was not an immediate task. The proposed evidence would have been largely predictive and would not have provided a fresh insight into the present contact decision. Professional support could appropriately be obtained later through the available child and adolescent mental health service.

4. The trial judge had lawfully used the welfare checklist in section 1 of the Children Act to weigh the children’s positive relationship with their father against the consequences of restricted contact. Regular contact would risk confusing them, creating unrealistic expectations of his return to family life, and disrupting the calm they had achieved. The judge was also entitled to weigh the future effect of learning of his offending, the mother’s ability to manage the consequences of contact, and practical difficulties in arranging safe supervision.

5. A no-contact order is an extreme intervention. Nevertheless, the trial judge had carefully identified all material factors, conducted the balance in accordance with law, and was entitled to accept the guardian’s recommendation. The order did not prevent the father from applying for contact to be reconsidered in the future.

• Court of Appeal (Civil Division) — dismissed the father’s appeal and upheld the order for no direct contact: [2011] EWCA Civ 1064.
• Bromley County Court — HHJ Atkinson ordered that there be no direct contact between the father and the three children on 25 January 2011. The children were to remain with their mother under a 12-month supervision order.