J-M (Child)

An appellate court reviewing an order ending direct contact must decide whether the lower court’s judgment was wrong. The former requirement that it be “plainly wrong” adds nothing. The review must include compliance with the duty under section 6(1) of the Human Rights Act 1998 to respect the engaged article 8 rights.

Direct parental contact should cease only exceptionally, for cogent reasons and as a last resort. The court must consider the child’s medium- and long-term welfare, explore every reasonable alternative and take all steps reasonably demanded to promote contact. It may nevertheless end direct contact where those measures have been exhausted and compelling an adolescent to participate against firmly expressed wishes would cause harm.

A father appealed against HHJ John’s dismissal of his appeal from an order setting aside direct contact with his 13-year-old son. The district judge had instead permitted limited indirect contact through cards and presents. The parents’ prolonged conflict had influenced the child, but the district judge also found that the father’s conduct contributed to the child’s opposition.

The father challenged the refusal of further psychological evidence, the assessment of the child’s wishes, the balance of harm and the conclusion that reasonable attempts to facilitate contact had been exhausted. A further issue was whether, after Re B (A Child) [2013] UKSC 33, the circuit judge had wrongly applied the traditional “plainly wrong” appellate standard.

1. Appeal dismissed unanimously. The district judge’s order terminating direct contact and providing for limited indirect contact remained in force.

2. The proper appellate question was whether the lower court’s exercise of judgment was wrong, not whether it was “plainly wrong”. Review also had to address whether the decision complied with section 6(1) of the Human Rights Act 1998 and the article 8 rights engaged. Although HHJ John used the traditional formulation, that did not invalidate his decision. His judgment expressly considered article 8 and scrutinised whether the district judge had applied the governing contact principles.

3. The governing principles were that the child’s welfare is paramount and that contact with a non-resident parent will almost always serve the child’s interests. The State and the court have a positive obligation to promote contact. They must examine every available alternative and take all steps that can reasonably be demanded before abandoning contact. The court must take a medium- and long-term view and avoid giving excessive weight to short-term difficulties. Contact may be terminated only exceptionally, for cogent reasons, as a last resort, where no alternative remains and contact would harm the child’s welfare.

4. The refusal to commission another psychological report was a proper case-management decision under Part 25 of the Family Procedure Rules 2010. The guardian had adequately investigated the child’s position, an additional report was not reasonably required to resolve the proceedings, and the application had been made late. The district judge had nevertheless kept the need for expert intervention under review.

5. The district judge had critically assessed the guardian, both parents, the child’s wishes and the causes of the contact breakdown. He recognised the mother’s hostility and influence but properly found that the father’s conduct also contributed. He considered the previous successful contact, the long-term loss inherent in separation and the available alternatives. Given the adolescent’s settled opposition, the absence of a reasonable prospect of successful observed contact and the likely harm of compulsion, the district judge was entitled to conclude that the end of the road had been reached.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed unanimously. The order ending direct contact remained in force: [2014] EWCA Civ 434.
2. County Court at Swansea: HHJ John granted permission on a limited basis and dismissed the father’s appeal on 7 June 2013.
3. District Judge: District Judge Regan refused direct contact, set aside the existing contact order and ordered limited indirect contact on 7 December 2012.