W (Children), Re

Where parental contact has fractured, decision-makers must actively consider options for fostering the relationship and, where appropriate, reunification, starting from the general premise that contact is in the child’s interests.

That approach does not require direct contact where the evidence shows that the children’s and primary carer’s physical or emotional safety cannot be secured. A judge may depart from a section 7 welfare recommendation if the reasons are cogent. The court is not bound by the recommendation. Findings about harassment and its impact on a parent may be based on oral evidence and judicial observation without medical expert evidence. Appellate intervention requires legal error or a conclusion that is plainly wrong.

The father appealed against an order made by Her Honour Judge Murfitt in the Chelmsford County Court on 12 June 2012. Following a fact-finding judgment dated 15 February 2012, the judge ordered that there be no further direct contact between the father and his two daughters, while allowing indirect contact.

The appeal challenged the judge’s legal approach to contact, several factual findings, and her decision to reject a section 7 welfare report recommendation for supervised contact. Permission to appeal had been granted by Black LJ. The central questions were whether the judge had applied the wrong legal test, made findings unsupported by evidence, or reached a plainly wrong welfare conclusion.

McFarlane LJ gave the leading judgment. Arden LJ and Thorpe LJ agreed. The appeal was dismissed and the application was refused.

1. Legal approach to contact. The court rejected the submission that the judge had placed the burden on the father to prove that contact should occur. Read as a whole, the judgment approached the case on the basis that contact should take place and that every realistic possibility had already been explored. The judge had not forgotten the general presumption that contact is in the child’s interests or the duty to foster relationships and work towards reunification where appropriate. The approach described in Re C (Direct Contact: Suspension) [2011] EWCA Civ 521 had not been disregarded.
2. Factual findings. The findings that the father would continue to harass the mother and that his conduct had harmed her emotional and physical health were supported by the evidence, including the parties’ oral evidence and the judge’s own assessment. Medical or psychological expert evidence was not required for those findings. The alleged finding that the father had denigrated the mother during supported contact was either not a finding or had an evidential basis.
3. Welfare report. A judge must give cogent reasons when departing from a welfare officer’s or social worker’s recommendation, but is not bound to follow it. The judge was entitled to differ from the section 7 recommendation because it had not adequately assessed whether supervision could protect the children from harm or considered the impact of the father’s behaviour on the mother, who was their primary carer and source of attachment. Following the recommendation automatically would have usurped the judge’s role.
4. Appellate restraint and future contact. The welfare evaluation and findings were not plainly wrong. The order did not end the father’s relationship with the girls: indirect contact continued, and a future application for direct contact could be considered if the father demonstrated that it would serve their best interests and would not jeopardise their well-being or that of their mother.

• Court of Appeal (Civil Division): Appeal dismissed. The order for no further direct contact was upheld, with indirect contact remaining available. The application was refused.
• Chelmsford County Court: Her Honour Judge Murfitt conducted a fact-finding hearing, with judgment dated 15 February 2012, followed by a welfare determination announced on 12 June 2012 ordering no further direct contact.