A (A Child)

A court determining contact must treat the child’s welfare as paramount. An older child’s wishes carry increasing weight, but the court must examine their reasons, reliability, history and possible parental influence.

Where direct contact orders engage family-life rights, appellate review addresses compliance with the court’s obligations, rather than merely asking whether the decision was plainly wrong. An appeal may also succeed where systemic delay or a serious procedural irregularity has denied a timely and effective process.

In an intractable contact dispute, the allocated judge should establish and maintain a coherent strategy. Before making a directive order, the judge should contemplate enforcement upon breach. The discretion concerns whether to make the order, since the statutory enforcement warning attaches automatically.

For more than ten years, proceedings had sought to establish contact between a girl and her father. No adverse finding had been made against him, contact had been positive when it occurred, and the mother was found to have been implacably opposed to it. The litigation nevertheless produced more than 80 orders since 2006 and involved numerous judges, guardians and other professionals.

On 9 October 2012, HHJ Goldsack QC ordered that the child reside with her mother, made no order for direct paternal contact and imposed a restriction under section 91(14) of the Children Act 1989 until October 2015. The judge relied substantially upon the nearly 13-year-old child’s opposition to contact and continued proceedings.

The father appealed. The central issues were whether the proceedings had violated the procedural requirements of article 8, whether the judge had adequately analysed the child’s wishes and feelings, and whether the final order should be reheard.

1. Appeal allowed and order set aside. The proceedings as a whole violated the procedural requirements inherent in article 8. They failed to provide the child and her father with a timely and effective process for determining their family-life rights. Although procedural complaints do not ordinarily establish an appeal absent unfairness, the cumulative failure here was sufficiently serious to require intervention: paras 47–65.

2. A private-law order refusing all direct contact plainly engages article 8. Following Re B (A Child) [2013] UKSC 33, appellate review therefore examines the lower court’s compliance with its human-rights obligation. The traditional “plainly wrong” criterion for reviewing an exercise of discretion is inapt. An appeal must also be allowed where the result is unjust because of a serious procedural or other irregularity under rule 52(11)(3) of the Civil Procedure Rules 1998: paras 42–48.

3. The lower court’s substantive welfare outcome was not necessarily wrong merely because the process violated article 8. Nevertheless, its analysis of the child’s wishes and feelings was inadequate. The judge did not reconcile his findings that her stated reasons lacked substance, that she had absorbed her mother’s hostility, and that her current views were her own. He also failed to address the expert evidence concerning the reliability of those views, the history of enjoyable contact, or the consequences of deciding the case without hearing from the mother: paras 66–77.

4. In an intractable contact case, the court should maintain judicial continuity, effective timetabling, a settled strategy and consistency. If a directive contact order is made and breached without good reason, the judge should consider statutory enforcement or contempt. If enforcement is not contemplated, the court should adopt another strategy. Section 11N of the Children Act 1989 makes the enforcement warning automatic; the judicial discretion concerns whether to make the contact order: paras 58–62.

5. The father’s contact and residence applications were remitted for a full and prompt rehearing before a single senior family judge allocated by Moylan J. McFarlane LJ gave the judgment. Briggs and Aikens LJJ agreed: paras 79–82.

1. Court of Appeal (Civil Division): Allowed the father’s appeal, set aside the order of 9 October 2012 and directed a full rehearing before a single senior family judge: [2013] EWCA Civ 1104.
2. Sheffield County Court: HHJ Goldsack QC ordered that the child reside with her mother, made no order for direct paternal contact and imposed a restriction under section 91(14) of the Children Act 1989 until October 2015. No citation is stated.