C (A Child), Re

Direct contact between a parent and child is a fundamental aspect of family life and should be stopped only as a last resort. A court must subject any restriction to strict and anxious scrutiny, consider available alternatives, and give paramount weight to the child’s welfare.

A temporary suspension of direct contact is not necessarily an abandonment of contact. It may be a proportionate, purposeful moratorium where reliable evidence shows that direct contact is presently likely to harm the child, indirect contact continues, and the suspension gives the parent time to address identified difficulties so that contact may safely resume.

The mother appealed against an order made by His Honour Judge Henderson in the Dudley County Court under Part II of the Children Act 1989. The judge made a residence order in favour of the father, suspended direct contact between the mother and C for at least 18 months, maintained indirect contact, and restricted further applications for direct contact without leave.

The evidence included reports from a psychologist, a psychiatrist, a contact assessor and C’s guardian. It indicated that the mother’s emotional outbursts and C’s insecure and anxious responses made direct contact presently damaging. The mother contended that contact had been prematurely abandoned and that a further family assessment should have been ordered.

1. Appeal dismissed unanimously. Munby LJ, with whom Hooper and Pill LJJ agreed, held that the judge had correctly begun from the vital importance of parental contact and the need for very good grounds before suspending it.
2. The judge was not required to rehearse the Strasbourg jurisprudence, the welfare checklist or Article 8 in detail. His reference to the Convention and the welfare checklist, read with his reasons and the evidence, showed that he had applied the required strict and anxious scrutiny. An appellate court should not substitute its own discretionary welfare evaluation unless the trial judge was plainly wrong.
3. The evidence securely supported the conclusion that direct contact was then likely to cause C significant harm. The judge was entitled to prefer the contact assessor’s oral evidence where it differed from her earlier report, and to accept the consistent core of the professional and guardian evidence. This was not a case in which the resident parent was obstructing contact.
4. The suspension was a purposeful moratorium, not a permanent abandonment of the maternal relationship. Indirect contact continued, the father supported future contact, and the mother had identified work to undertake before direct contact could safely resume. In those circumstances, planned delay could promote C’s longer-term welfare.
5. A further psychological or psychiatric family assessment was unnecessary. The judge had sufficient information and expert assistance to decide the issue. In any event, the likely uncertainty, delay and strain caused by a further assessment decisively outweighed its unlikely benefit.
6. The restriction on further applications under section 91(14) of the Children Act 1989 was a proportionate part of the overall process. It allowed a period free from further litigation while preserving the prospect of a future resumption of direct contact.

• Court of Appeal (Civil Division): The mother’s appeal was dismissed: [2011] EWCA Civ 521.
• Court of Appeal (Civil Division): Permission to appeal was granted on renewal: [2011] EWCA Civ 100.
• Dudley County Court: His Honour Judge Henderson made a residence order in favour of the father, suspended direct contact, directed indirect contact and made a restriction on applications under section 91(14) of the Children Act 1989.