W (Children), Re

Direct contact between a child and a non-resident parent should be refused only exceptionally. The child’s welfare remains paramount, but contact is normally beneficial and its termination must be a last resort, supported by cogent evidence after the court has grappled with all reasonable alternatives.

A judge may assess a parent’s evidence and presentation, but should exercise caution before making a profound psychological or predictive assessment from conduct in court. An indefinite refusal of contact cannot rest centrally on an unsafe or insufficiently robust assessment that the residential parent cannot facilitate it. Where safe contact is in the child’s interests, both parents sharing parental responsibility should use their best endeavours to meet that need.

The father appealed from an order of Her Honour Judge Marshall in the Swindon County Court dismissing his application for direct contact with his two daughters. There had been no direct contact for nearly three years. The judge found that the father had made substantial therapeutic progress and could manage contact appropriately, but concluded that the mother’s trauma and inability to support contact made a reintroduction programme unworkable.

The children’s guardian supported a gradual reintroduction of contact under his guidance and with the assistance of the paternal aunt. The central issue was whether the evidence about the mother’s ability to support contact was sufficiently cogent to justify an open-ended continuation of the suspension of direct contact.

1. Appeal allowed. The judge’s refusal of direct contact was plainly wrong. The evidence did not have the cogency required to deny the children direct contact with their father for an indefinite future.

2. Under Children Act 1989, section 1(1), welfare is paramount. Nevertheless, contact with the non-resident parent is almost always in a child’s interests. Following Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521 and Re P (Children) [2008] EWCA Civ 1431, direct contact should be terminated only exceptionally, for cogent reasons, after the judge has considered all available alternatives. It is a last resort.

3. The trial judge correctly identified the mother’s refusal to undertake therapy as the sole effective barrier to contact, and regarded therapy as imperative. It was therefore not open to make a final no-contact order without focusing on steps to secure the mother’s engagement with that barrier. The judge had not grappled with all alternatives.

4. The evidence also did not robustly establish that the mother was psychologically unable to support contact. The psychologist had assessed her only once, eighteen months before the hearing, and later relied principally on one telephone call. The psychologist had left court before the mother’s collapse in the witness box. A judge may form an overall impression of a parent, but must be cautious about making a profound assessment of psychological functioning or future behaviour from courtroom presentation. That assessment was unsafe as the central foundation for an indefinite refusal of contact.

5. The court substituted an order requiring the mother to make the children available for contact with the father. Reintroduction was to proceed gradually at the guardian’s discretion and under his control, using the paternal aunt as intermediary. The matter was remitted for directions before Baker J, or a judge nominated by him other than Her Honour Judge Marshall.

Obiter: shared parental responsibility under Children Act 1989, section 3, includes duties and responsibilities as well as rights. Where beneficial contact is agreed to be in a child’s interests, each parent should use best endeavours to meet that need.

• Court of Appeal (Civil Division): allowed the father’s appeal and replaced the refusal of direct contact with a supervised, gradual reintroduction order: [2012] EWCA Civ 999.
• Swindon County Court: on 3 February 2012, Her Honour Judge Marshall dismissed the father’s application for direct contact but ordered monthly indirect contact.