G (A Child)

When deciding contact for a child in long-term foster care, the court must assess welfare over the foreseeable future using up-to-date evidence about wishes and feelings and the likely value of each significant family relationship. The ordinary starting point is fairly regular direct contact with family, unless specific child-focused reasons justify another course. A decision prioritising sibling contact must address future changes, social-media contact, placement confidentiality and what should happen if the proposed contact fails. A Children Act 1989 s 34(4) order authorises refusal of contact but does not require it. Failure to engage with these matters may render the exercise of discretion unsafe and require a rehearing.

The appeals concerned contact arrangements for E, a ten-year-old child in long-term foster care. Her younger siblings, A and C, had been placed for adoption abroad, while her elder sister, L, lived with their father and his wife. At first instance, the Newcastle-upon-Tyne County Court prioritised the possibility of direct sibling contact and made orders under the Children Act 1989 s 34(4) authorising refusal of contact between E and her mother, father and L.

The father, mother and L appealed on the basis that the judge had failed to assess the future value of the competing relationships, E’s wishes and feelings, the effect of social media, and the consequences if sibling contact did not continue. The central issue was whether the welfare analysis was sufficiently complete and future-focused.

The Court of Appeal allowed the appeals concerning contact and directed that the issue be reheard by a different judge.

1. Appellate approach. The first-instance judge had a wide welfare discretion, and the appellate court should intervene only where there was a clear need to do so. That threshold was met because the omissions in the analysis made the decision unsafe.
2. Required welfare assessment. The judge had not adequately looked to the future. The evidence about E’s relationship with A and C was already several months old. There was inadequate evidence of E’s current wishes and feelings, including her wishes about contact with L. The judge had not evaluated the likely value, in two or three years, of occasional sibling contact compared with more regular contact with family members in the United Kingdom.
3. The court also required consideration of the possibility of unstructured contact through social media, the practical consequences of E learning about the younger children’s adoptive placement, and the realistic prospect of resuming contact with her father and L if sibling contact failed. That contingency would require a fresh and comprehensive appraisal, rather than the assumed simple restoration of contact.
4. Long-term foster care. The conventional starting point is maintenance of existing family relationships through fairly regular direct contact unless specific child-focused reasons justify an alternative. A child in foster care will ordinarily leave care at 18 and may then choose to rejoin the family. Ending all contact may therefore undermine identity and prove counterproductive.
5. A s 34(4) order under the Children Act 1989 is permissive: it authorises refusal of contact but does not require refusal. The cessation of all contact, including indirect contact, was unsatisfactory. The November 2013 s 34(4) orders were set aside, but the unappealed May 2012 order concerning the mother remained in force. The mother’s renewed application for permission to appeal against refusal to discharge the care order was refused. The Court expressed no view on the eventual outcome after rehearing.

1. Court of Appeal (Civil Division): Appeals by the father, mother and L concerning contact allowed. The contact issue was remitted to a different judge for rehearing. The November 2013 orders under the Children Act 1989 s 34(4) were set aside, subject to the earlier unappealed order concerning the mother remaining in force.
2. Newcastle-upon-Tyne County Court: Her Honour Judge Hudson dismissed applications to discharge the care order, revoked E’s placement-for-adoption order by consent, and made orders under the Children Act 1989 s 34(4) authorising refusal of direct contact with the mother, father and L while prioritising possible direct contact with A and C.