K (Children)

In child-contact proceedings, the appellate question is whether the judge struck the proper balance between the risks of dangerousness and the children’s need for contact. A careful welfare evaluation supported by evidence of adverse change will not be disturbed unless the evaluation or resulting order is wrong or disproportionate.

An order under section 91(14) of the Children Act 1989 may operate as a substantial risk-reduction measure. Once the order is justified, its duration is a matter of judicial discretion. A term lasting through the children’s minority may be appropriate, and the order remains a procedural filter rather than an absolute bar.

The father appealed against an order made by His Honour Judge Bellamy, sitting as a judge of the High Court, which reduced his supervised contact with his two daughters to two occasions each year, imposed conditions, reserved future applications to the judge and made a ten-year order under section 91(14) of the Children Act 1989.

He also pursued two case-management appeals concerning the appointment of experts. The principal ground concerned his asserted privilege against self-incrimination under section 14 of the Civil Evidence Act 1968. During the appeal, however, his position changed and the ground fell away. The central remaining issues were whether the contact reduction and the duration of the section 91(14) order were justified, and whether the case should remain reserved to Judge Bellamy.

1. Disposition. The Court of Appeal dismissed the substantive appeal. It refused permission for the two case-management appeals if permission had not already been granted; alternatively, it dismissed them on their merits.
2. Self-incrimination. The father’s principal ground alleged that adverse inferences had been drawn from his refusal to answer questions about earlier findings while relying on section 14 of the Civil Evidence Act 1968. Ryder LJ expressed the personal view that the privilege did not arise after the adverse findings had been made. In any event, the ground fell away when the father’s representatives informed the court that he did not accept those findings. The judge’s assessment of the evidence and the continuing risks therefore remained unchallenged.
3. Contact and welfare. The relevant appellate question was whether the judge had struck the right balance between the high or very high risks associated with the father and the children’s need for contact. The judge had carefully evaluated the mother’s continuing fear and distress, the absence of meaningful change by the father and the essentially neutral benefit of contact. The evidence showed adverse rather than neutral change. The reduction in contact was therefore justified and was neither wrong nor disproportionate.
4. Section 91(14). The making of an order under section 91(14) of the Children Act 1989 was conceded to be proper. Its duration was a matter for the judge’s discretion. Given the purpose of preventing the deleterious effects of continuing litigation during the children’s minority and the level of risk, a ten-year term was justified. The order was a procedural filter requiring permission, not an absolute prohibition on applications.
5. Judicial continuity. Judge Bellamy regularly sat as a High Court judge in the Family Division pursuant to section 9 of the Senior Courts Act 1981. In the absence of bias or impropriety, retaining the case with an available judge who could provide continuity was unobjectionable.
6. Extended paternal family. The exclusion of the paternal grandmother, uncle and aunt from contact appeared to have been an interim and insufficiently reasoned measure. The longer-term issue remained for determination at first instance and did not provide a ground for the substantive appeal. The court encouraged a pragmatic agreement if safe contact could be restored.

The court also criticised the incomplete appeal bundles, late filing of documents and failure to notify the court promptly of a material change in the appellant’s case.

• Court of Appeal (Civil Division) — In [2013] EWCA Civ 1776, the substantive appeal was dismissed. Permission for the two case-management appeals was refused, or alternatively those appeals were dismissed.
• High Court, Family Division — His Honour Judge Bellamy, sitting as a High Court judge, made the order of 22 February 2013 reducing supervised contact, imposing conditions, reserving future applications and making a ten-year section 91(14) order.
• High Court, Family Division — Black J conducted fact-finding hearings in 2007 and 2008 and delivered judgment on 13 August 2009, making residence, contact and section 91(14) orders.