M (Children)

A no-contact order is a draconian interference with family life. It may be justified only where the child’s welfare requires it after the court has considered and rejected all reasonable and available means of preserving a relationship with the non-resident parent.

Where professionally supervised contact may manage the risks to the child and the resident parent, the court must adequately examine that option and explain why it cannot safely be used. Under Children Act 1989, welfare remains paramount; under article 8, the child’s rights take priority over the parents’ rights. An appellate court will not ordinarily disturb primary findings based on credibility, but may intervene where the proportionality of the resulting no-contact order has not been adequately justified.

The father appealed from an order of Her Honour Judge Cushing, made on 17 May 2013 in Guildford County Court, refusing him any contact with his three sons. The judge had found that the mother genuinely feared the father and that he had not addressed his violent and controlling behaviour.

Permission to appeal was granted on the issue whether the risks of supervised contact had been properly assessed. The appeal did not reopen the judge’s primary findings about either parent. The central issue was whether, despite those findings, a complete bar on contact was proportionate without an adequate investigation of rigorously supervised professional contact.

1. Appeal allowed. The judge’s findings on the father’s continuing attitudes and behaviour, and on the mother’s genuine fear of him, were unimpeachable. They depended on primary fact, witness assessment and permissible inferences. The appellate court would not revisit them.

2. Nevertheless, the order for no contact was draconian. Welfare was paramount and the children’s article 8 rights took priority over their parents’ rights. A continuing relationship with the non-resident parent was highly desirable, and domestic violence was not itself an absolute bar to direct contact. The court had to assess the circumstances as a whole.

3. Before concluding that no direct contact was necessary and proportionate under article 8(2), the court had to consider and discard all reasonable and available arrangements that could promote family life consistently with welfare. This included rigorously supervised professional contact.

4. The first-instance judgment adequately addressed the dangers of unsupervised contact, but did not sufficiently examine why professional supervision, secure arrangements and transport could not protect the children and manage the mother’s anxieties. It also did not adequately explain departure from the expert’s evidence that limited supervised contact could be possible, followed by review.

5. The no-contact order was set aside. The matter was remitted to Her Honour Judge Cushing for a rehearing focused on available resources, accommodation and personnel for strictly supervised contact, followed by review. The father could advance detailed, evidence-based proposals; the primary findings otherwise remained intact.

• Court of Appeal (Civil Division): allowed the father’s appeal, set aside the no-contact order and remitted the case for rehearing on supervised contact resources: [2013] EWCA Civ 1147.
• Guildford County Court: Her Honour Judge Cushing refused the father’s application for contact by an order dated 17 May 2013.