C (A Child)

A final order ending parent-child contact in a highly conflicted case requires a reliable welfare assessment. Where a CAFCASS recommendation against contact is disputed, particularly where the order is draconian, the parent should have a fair opportunity to question the officer. Material evidence presenting a substantially different picture of the child’s wishes and feelings must be considered with the officer, because it may affect the recommendation and future arrangements. Failure to do so may require a rehearing. Independent representation for the child may assist in very difficult cases.

The parents separated when P was three. Residence was granted to the mother in 2006, with continuing contact between P and her father. In 2009 the mother sought to vary the contact arrangements, relying on P’s stated wish to have no further contact. The father sought arrangements that would strengthen his relationship with P.

A CAFCASS officer reported that P opposed contact and recommended its temporary suspension. The report did not address a series of affectionate emails between P and her father and stepmother, which presented a materially different picture. After a hearing, HHJ Richards ended contact and refused the father’s applications for transfer of residence, shared residence and parental responsibility for his wife. The father appealed, principally challenging the failure to hear the CAFCASS officer and the conclusion that no further enquiries or options were available.

1. Appeal allowed and matter remitted. The Court of Appeal expressed no view on the eventual outcome. The case was returned to HHJ Richards for a further hearing on the complete evidence.
2. The judge had approached P’s welfare as the paramount consideration and had carefully recognised the competing consequences of continuing or ending contact. Nevertheless, the CAFCASS officer’s attendance was necessary. Her recommendation was against contact, a draconian outcome which the father disputed. He was entitled to explore the recommendation with her in the witness box.
3. The emails required specific consideration by the CAFCASS officer. They were in the bundle and had been referred to in the evidence, but the officer had not apparently seen or analysed them. They might have altered her assessment of P’s true wishes and feelings or her advice about the future. The omission was therefore a material gap in the welfare evidence.
4. The Court recognised the pressure on the family courts and the burden that further litigation and professional involvement could impose on a child. Those concerns did not justify deciding the matter without testing the disputed recommendation and the significant contrary evidence.
5. Because the case was returning for determination, the Court directed that P should have independent representation through a guardian and solicitor. A directions hearing was to take place promptly, with the future role of the CAFCASS officer to be determined, including whether she would need to give evidence and be provided with the emails in advance.

1. Court of Appeal (Civil Division): [2011] EWCA Civ 261, 2 February 2011. Appeal allowed; the matter was returned to HHJ Richards for a further hearing and directions were made for P’s independent representation.
2. Norwich County Court: HHJ Richards, 11 June 2010. Contact was ended. Applications for transfer of residence, shared residence and parental responsibility for the father’s present wife were refused.