A (A Child), Re

Welfare remains the paramount consideration in determining contact, despite the general benefit of a child having a relationship with both parents. An order for no direct contact is an exceptional interference with family life and must be necessary and proportionate under Article 8. The court must assess whether the proposed order is realistically capable of promoting contact and whether enforcement would cause greater harm than the absence of direct contact. Where expert evidence establishes no real prospect of successful direct contact, and enforcement would perpetuate conflict and damage the child, the court may confine contact to indirect contact. The court’s powers do not extend to providing publicly funded services or making a child or parent a better family member at public expense.

The father sought direct contact with his 14½-year-old daughter after almost continuous family proceedings since 2001. The child had not had direct contact with him since February 2012. The mother opposed direct contact, while the child, separately represented, expressed a firm wish for the proceedings to end and stated that she would not attend direct contact if ordered.

The Court of Appeal had set aside an earlier order limiting contact to indirect contact because of procedural failures and inadequate welfare analysis. The matter was remitted for an effective rehearing. On rehearing, the court considered updated expert and guardian evidence concerning the longstanding parental conflict, the child’s wishes and feelings, the feasibility of enforcement, and the likely effect of continued proceedings.

1. Outcome. The court refused to make an order for direct contact and made an order confined to indirect contact.
2. Under section 1 of the Children Act 1989, the child’s welfare was paramount. The fact that children generally benefit from good relationships with both parents did not require direct contact to be ordered in every case.
3. An order for no direct contact was an extreme order engaging the family-life rights of the child and father under Article 8. The decision therefore had to be necessary and proportionate, assessed in the context of the orders and resources realistically available to the court.
4. The court could use its powers creatively, but could not compel the provision of unavailable services or resources. The principle stated by Lord Scott in Re G (Interim Care Order: Residential Assessment) [2006] 1 FLR 601 was applied: Article 8 did not create a right to be made a better parent at public expense.
5. The evidence established no real prospect that a court order could create direct contact of sufficient quality and frequency to overcome the factors preventing a sustainable relationship. The child’s expressed views were now her own, although their initial formation had been influenced by the maternal environment. An order backed by enforcement would probably intensify the child’s opposition, prolong the conflict and cause further harm.
6. A transfer of residence or placement in foster care was unsupported by the evidence and would be excessively drastic and harmful. The only realistic alternative was indirect contact. Confined to that form, contact was necessary and proportionate because direct-contact proceedings and enforcement would be more detrimental to the child’s welfare than the absence of a direct-contact order.

1. Court of Appeal: set aside Goldsack HHJ’s order limiting contact to indirect contact and directed an effective rehearing because procedural failures and deficiencies in the welfare analysis had rendered the outcome unjust.
2. High Court (Family Division): on rehearing, refused direct contact and confined the order to indirect contact.