C (A Child)

In exercising a discretion concerning indirect contact under the Adoption and Children Act 2002, the child’s welfare and rights must remain central. An order cannot stand where the decision-maker has misunderstood or distorted material evidence, particularly expert evidence about the proper management of contact. The court must consider whether the proposed arrangement benefits the child and addresses the child’s position. A seemingly minor requirement, such as an annual photograph, may therefore be set aside where the reasoning is inadequate or rests on an erroneous understanding of the evidence.

A local authority appealed from an order made by Mr Recorder Sapsford QC in the Principal Registry Family Division. The order provided for indirect contact between the father and the child to include an annual photograph of the child.

The application had been opposed and was not addressed in the Recorder’s judgment. After being reminded that it remained outstanding, he granted it summarily, without hearing the local authority’s response or giving reasons. Following an adjournment, he supplied an addendum judgment. The central issue was whether the discretionary order could stand in light of the evidence and the Recorder’s reasoning.

1. Appeal allowed. The Court of Appeal set aside the paragraph requiring an annual photograph to be sent to the father.
2. The Recorder had validly recognised the child’s continuing connection with the paternal family and the father’s continuing presence in the child’s mind. However, his conclusion that indirect communication would assist future therapy did not reflect the evidence. The evidence indicated that any indirect contact should occur in consultation with, and subject to the approval of, the child’s therapist.
3. Lord Justice Thorpe held that the Recorder had not correctly remembered or understood material evidence. His discretionary conclusion therefore rested on an inadequate foundation. Lord Justice Hallett and Lord Justice McFarlane agreed.
4. In exercising the discretion under section 26 of the Adoption and Children Act 2002, the child’s welfare must be paramount. The child’s position must be adequately considered, including whether the proposed arrangement provides any benefit or meets any need. The apparently minor nature of the arrangement did not remove that requirement.
5. The order was insufficiently or erroneously reasoned and was set aside.

• Court of Appeal (Civil Division): The local authority appealed against an order of Mr Recorder Sapsford QC in the Principal Registry Family Division. In [2012] EWCA Civ 1281, the appeal was allowed and the annual-photograph provision was set aside.