A & B (Children)

Contact enforcement must be assessed in the wider context of the children’s welfare, family relationships and the causes of resistance to contact. An enforcement order under the Children Act 1989 requires proof of non-compliance, consideration of any reasonable excuse, necessity, proportionality and the child’s welfare. Such an order is inappropriate where the children themselves resist contact and coercion is unlikely to change their attitude. Abandoning contact should occur only where contact is plainly contrary to welfare, restoration has no realistic prospect of being beneficial, or attempted restoration causes more harm than benefit. Where the evidence indicates significant emotional harm, the court must consider wider public-law intervention and obtain further evidence before making final welfare decisions.

The proceedings concerned prolonged and unsuccessful attempts to maintain contact between two children and their biological father and his civil partner. The resident household opposed further direct and indirect contact, while the applicants sought committal, enforcement, residence and costs orders. The resident parties sought variation or discharge of the existing contact order.

The court considered the children’s resistance to contact, the effect of the adults’ conflict, the mother’s mental ill-health, alleged domestic abuse, the children’s emotional welfare and the possibility of public-law intervention. The central issues were whether contact should be enforced, abandoned or pursued through a wider welfare strategy, and whether the statutory threshold for intervention was met.

1. The men’s applications for committal and for an enforcement order under sections 11J and 11L of the Children Act 1989 were dismissed. The court was not satisfied that coercive orders would secure compliance or reverse the children’s resistance. Committal would probably reinforce hostility, aggravate the children’s relationship with the applicants and be counter-productive.

2. Before making an enforcement order, the court had to be satisfied beyond reasonable doubt that the contact order had not been complied with, allow the respondents to establish a reasonable excuse on the balance of probabilities, and determine whether enforcement was necessary and proportionate, taking the children’s welfare into account. “Necessary” required something close to the imperative, rather than what was merely useful, reasonable or desirable.

3. The fact that the children resisted contact was material. An order directed against the adults might be inappropriate where the court could not conclude that it would change the children’s attitude. The history and context of the contact dispute could not be ignored.

4. The court declined finally to abandon attempts at contact. That course would be justified only if contact was plainly contrary to the children’s interests, there was no realistic prospect of restoring beneficial contact, or attempted restoration caused more harm than the good likely to result from a relationship with the natural parent.

5. The evidence established reasonable grounds for believing that the children were suffering significant emotional harm. Relevant matters included exposure to hostile views about their father, the loss of a positive relationship with him, anxiety and other distress, exposure to domestic abuse, the effects of the mother’s mental ill-health, and the handling of paternity testing. The threshold for public-law intervention was therefore made out at least for an interim order under section 38 of the Children Act 1989.

6. Final decisions on residence, discharge or variation of the contact order and costs were adjourned. The court directed an urgent further assessment by Dr Berelowitz, including assessment of the children, and deferred a direction under section 37. The existing contact order was suspended insofar as necessary, with no direct or indirect contact for the time being apart from limited cards and presents.

First-instance decision. The judgment records earlier stages in the same family proceedings, including Re P and L (Contact) [2011] EWHC 3431 (Fam), but no appeal from the present decision.