W (Children) (Contact Dispute) (No. 2)

In prolonged child-contact proceedings, the court must decide on the evidence and circumstances as they exist, while giving substantial weight to the value of a relationship with an absent parent. Direct contact may nevertheless be refused where carefully managed desensitisation and other reasonable strategies have been tried without overcoming the children’s objections, and continued attempts have become contrary to their welfare. A court need not obtain a reliable explanation or diagnosis of the children’s feelings before making that welfare decision. An appellate court should not interfere where the judge applied the correct legal approach, evaluated the professional evidence and history critically, and reached a conclusion open to him. A hope that wider family links will continue, if expressed only as a postscript, does not make it a necessary foundation of the order.

This was the father’s second appeal concerning direct contact with his two daughters. On the first appeal, the Court of Appeal directed a gradual reintroduction of contact under the children’s guardian’s supervision: [2012] EWCA Civ 999.

Following extensive further attempts, HH Judge Barclay dismissed the father’s residence application, refused an order for direct contact, and ordered indirect contact through letters and presents. The father challenged the findings that appropriate desensitisation strategies had been exhausted, that insufficient weight had been given to the history and potential long-term harm, and that the judge had abdicated responsibility by relying on the paternal family to maintain links. The central issue was whether refusal of further direct-contact work was supported by the children’s welfare and the evidence.

1. The appeal was dismissed. The father’s appeal against the refusal of direct contact failed. The orders for indirect contact and related information-sharing therefore remained in force.
2. The legal context identified on the first appeal had not materially changed. Contact with both parents is ordinarily in children’s best interests, and depriving children of an absent parent’s contribution is a very exceptional step and a last resort. That principle did not require the court to continue pursuing direct contact indefinitely.
3. Judge Barclay was required to decide the case on the facts as they existed, rather than on hoped-for future developments. He had properly recognised the importance of the children’s relationship with their father and had not permitted parental sabotage to dictate the result. He was entitled to find that all appropriate strategies had been attempted, despite some failures and some encouraging contacts.
4. The judge was also entitled to rely on the children’s guardian’s assessment that the children’s wishes were clear and that continued attempts had become contrary to their welfare. The proceedings had lasted for many years and had involved substantial professional and expert intervention. There was no sufficient basis for assuming that further work with the paternal aunt would produce a breakthrough.
5. The court rejected the argument that the children’s underlying reasons had first to be established through further assessment or therapy. Feelings may have several causes and may not be capable of reliable diagnosis. The judge was entitled to conclude that further pursuit of the issue was no longer in the children’s interests.
6. The judge’s hope that the mother would maintain the children’s relationship with their paternal aunts was a postscript, not a necessary foundation of his decision. It did not amount to an abdication of the court’s responsibilities. Lady Justice Black gave the judgment; Lord Justice Ryder and Sir Stanley Burnton agreed.

• Court of Appeal (Civil Division): The father’s appeal was dismissed on 9 April 2014.
• Bristol District Registry: HH Judge Barclay’s order of 21 June 2013 dismissed the residence application, refused direct contact, and provided for indirect contact.
• Court of Appeal (Civil Division): An earlier appeal in the same proceedings was allowed, with directions for a gradual reintroduction of contact under the guardian’s supervision: [2012] EWCA Civ 999.