Re P-K (Children)

Direct contact between a child and a non-resident parent should be stopped only in exceptional circumstances, where there are cogent reasons, no workable alternative, and direct contact would harm the child’s welfare. The court must consider available means of maintaining or restoring contact, but need not set out a separate detailed balancing exercise if the judgment, read fairly, shows that the relevant factors and principles were kept in view. A trial judge may reject a CAFCASS recommendation where adequate reasons are given. An erroneous subsidiary risk finding will not invalidate the result if the remaining findings and evidence independently justify refusing direct contact.

The appeal arose from private law proceedings concerning two children. Following a fact-finding hearing, the father’s applications for direct contact were dismissed because of serious findings concerning coercive and violent conduct, together with continuing risks to the mother and children. Indirect contact was ordered.

The father appealed to the Court of Appeal, challenging the judge’s treatment of CAFCASS evidence, the refusal of direct contact, the assessment of risk, reliance on the earlier CAFCASS report, and a finding that the children faced a risk of kidnapping. The central issues were whether the judge had applied the correct principles and whether the erroneous kidnapping finding undermined the decision.

Appeal dismissed. Lady Justice King gave the leading judgment, with which Lord Justice Tomlinson and Lord Justice Moore-Bick agreed.

1. Applicable principles. Where direct contact is being refused, the court must apply the principles identified in Re W [2012] EWCA Civ 999, including the need for exceptional circumstances, cogent reasons, consideration of alternatives, and a conclusion that direct contact would be detrimental to the children’s welfare. The court must grapple with available means of maintaining or restoring contact. The formulation in Re D (A Minor)(Contact: Mother’s Hostility) [1993] 2 FLR 1 and the summary of the relevant Strasbourg principles in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912 were consistent with that approach.
2. Balancing exercise and CAFCASS evidence. The first-instance judge was not required to recite every benefit of direct contact in a separate section. His judgment set out the governing principles immediately before the conclusion and expressed the reasons as cogent and the circumstances as exceptional. He was entitled to reject Ms Williams’s recommendation because it adopted the earlier risk analysis but proposed a standard contact structure without adequately addressing how the identified risks could be managed.
3. Erroneous kidnapping finding. The specific finding that the children were at risk of kidnapping had not been made at the fact-finding hearing and was an error. It was not, however, a decisive tipping point. The serious findings of false imprisonment, threats to kill and coercive conduct, together with the risk assessment, the father’s lack of insight and denial of the findings, and the absence of practical safeguards independently supported the refusal of direct contact.
4. The children’s welfare therefore required indirect contact notwithstanding the exceptional nature of the order sought. The appeal, including the complaints concerning reliance on the earlier CAFCASS report and Article 6, was dismissed.

1. Court of Appeal (Civil Division) — [2014] EWCA Civ 1602. The appeal was dismissed.
2. Chelmsford County Court — His Honour Judge Holt dismissed the father’s and paternal grandfather’s applications for direct contact, ordered indirect contact, and varied the non-molestation order.