A-M (Children)

An appellate court must explain how material evidence bears on the welfare decision under challenge. Where contact evidence is central to criticism of a parent’s approach, the judge must evaluate the contact records and state conclusions sufficient to show that they provide a secure foundation for the findings. A decision may be set aside where that evaluation is absent, even if the judge may in fact have considered the material. The issue should then be reheard with a fresh assessment of the whole picture and the children’s best interests.

The mother appealed against orders made by His Honour Judge Harington in the Gloucester County Court concerning contact with her 13-year-old daughter and 11-year-old son. The judge dismissed her application for increased contact, reduced direct contact to six occasions a year with limited email and telephone contact, and made a two-year restriction under section 91(14) of the Children Act 1989.

The residence issue had been concluded when permission to appeal was refused. Permission was granted in relation to contact and the section 91(14) order. The central issue was whether the judge had properly evaluated the contact-centre material before finding that the mother’s approach justified the reduced contact.

1. Appeal allowed. The order was set aside and the contact issue was remitted to the Family Court for rehearing before a different circuit judge. NYAS was directed to appoint a new caseworker.
2. The decision concerned the children’s best interests. The judge’s reasoning focused on the mother’s hostility towards the father and her attitude to the children’s life with him, but did not evaluate the contact-centre notes or explain what conclusions could properly be drawn from them.
3. The contact material was of central importance. A decision criticising the mother’s approach during contact could not safely be made without a thorough review of that material to determine whether it provided a secure foundation for the criticism. The omission to set out conclusions about it was fatal, even if the judge had considered it in fact.
4. The new judge must assess the whole picture, including the children’s wishes and relationship with their mother, the mother’s conduct and any signs of improvement. If reduced contact remains sought, the contact notes require critical evaluation, and attendance at part of a contact session may be necessary to assess the family dynamics.
5. The mother did not oppose a two-year Children Act 1989 section 91(14) restriction concerning further residence applications, and that order was made. The wider question of restricting other applications was left to the rehearing after the contact decision.
6. The residence issue and further assessment of the daughter were closed. The court also directed that a focused, logical and accessible bundle be prepared for the rehearing.

• Court of Appeal (Civil Division): [2014] EWCA Civ 1489 — appeal allowed; the contact order was set aside and the issue remitted for rehearing before a different circuit judge.
• Gloucester County Court: His Honour Judge Harington dismissed the mother’s application for increased contact, reduced direct contact, and made a section 91(14) order.
• Earlier proceedings: residence had previously been transferred to the father. The mother’s appeal was dismissed, and permission to appeal against a later reassessment decision was refused. The residence issue was therefore not reopened in this appeal.