SMD v LMD

In applications concerning child contact, the child’s welfare is paramount. Contact with a non-residential parent is generally beneficial, but direct or indirect contact may be prohibited where cogent evidence establishes a serious risk of harm. A court may make a Children Act 1989 section 91(14) restriction without a history of unreasonable applications where the child’s welfare requires it, provided the circumstances go beyond ordinary parental animosity and create a serious risk of unacceptable strain. A restriction lasting until the child is 16 is exceptional and requires clear reasons and guidance on what would justify a future application. The court must also ensure that any publication or broadcasting identifying the child is restrained where it poses a real risk to the child’s welfare.

The father applied for contact with his eight-year-old daughter, who lived with her mother. In earlier proceedings, a deputy High Court judge found that the father had sexually abused the child and that the mother had insufficiently protected the child from her antipathy towards him. The father’s appeal against those findings was dismissed.

The present hearing addressed direct and indirect contact, a proposed restriction under section 91(14) of the Children Act 1989, and injunctions preventing publication of material identifying the child or publicising the dispute. The central issue was whether contact or further litigation presented an unacceptable risk to the child’s welfare.

1. No contact. The court’s paramount consideration was A’s welfare under section 1(3) of the Children Act 1989. Although contact with a non-residential parent is generally in a child’s interests, the established findings and the evidence demonstrated a real risk of further sexual abuse and a greater risk of serious emotional and psychological harm. The father rejected the findings, remained focused on vindicating his own position, criticised the mother, and was unable to recognise or respect boundaries.
2. The court concluded that direct contact would be unsafe. Indirect contact by cards was also refused. There was no confidence that the father would comply with conditions, and failed or withheld cards would risk confusing and unsettling A. No direct or indirect contact was therefore proportionate to the risk identified.
3. Section 91(14) order. The power had to be exercised sparingly and only in exceptional circumstances. Those circumstances existed because the father was likely to make repeated section 8 applications, causing debilitating strain to the mother and impairing her parenting capacity. The order was made until A reached 16.
4. Permission for a future section 8 application would require the father to accept the factual findings, undertake the recommended psychotherapeutic intervention successfully, and show consistent prioritisation of A’s welfare and recognition of the mother’s beneficial role.
5. Injunctions. Publication or broadcasting of material identifying A or advancing the father’s campaign was wholly contrary to her welfare. Injunctions were necessary because less restrictive measures would not adequately protect her.

The judgment records that the father’s appeal against the earlier fact-finding judgment was dismissed by the Court of Appeal on 21 August 2013. The present decision was a first-instance determination of contact, section 91(14), and injunctive applications.