A & B (Children)

In determining public and private law applications concerning children, their welfare remains paramount. The court must choose a proportionate order and should prefer the least interventionist measure capable of protecting the children and promoting their welfare. Prolonged litigation may itself cause significant harm, particularly where it intensifies family conflict and damages the children’s relationships. A child’s wishes and feelings require careful assessment but are not necessarily determinative. Contact should be structured realistically, without imposing arrangements likely to expose a child to further conflict. The court may conclude proceedings where continued forensic investigation is unlikely to produce a meaningful benefit. A supervision order may provide an appropriate statutory framework without removing children from adequately caring primary carers. Restrictions under section 91(14) of the Children Act 1989 are exceptional, proportionate protective measures, justified where further applications would expose children or carers to unacceptable strain.

The proceedings arose from nearly six years of private law litigation between two fathers and two mothers concerning A and B, biological children of one of the fathers and one of the mothers. Following earlier judgments concerning contact and interim public law measures, X County Council applied for public law orders under Part IV of the Children Act 1989.

The court considered the children’s welfare, their wishes and feelings, contact with the fathers, the quality of social work assessment, alleged risks in the mothers’ household, the appropriate public law order, whether further fact-finding was proportionate, whether proceedings should conclude, and whether restrictions under section 91(14) were required.

1. Outcome. The court made a 12-month supervision order in favour of X County Council. B was to have supported contact with the fathers on eight occasions during the following year and thereafter eight times annually, initially for four hours and ultimately without supervision. A was to receive indirect contact. The court made a section 91(14) order preventing F1, F2, M1 and M2 from making applications under Part II of the Children Act 1989 without leave until 19 June 2015.
2. The welfare of A and B was paramount under section 1 of the Children Act 1989. Their wishes and feelings were important, particularly A’s views given her age and understanding, but they were not determinative. The court had to distinguish A’s entrenched opposition from B’s more ambivalent response to contact.
3. Continuing litigation had become a substantial source of harm. Further forensic investigation was unlikely to produce a meaningful result, particularly given M1’s mental ill-health and inability to participate effectively. The court therefore declined further fact-finding and concluded that the proceedings should end.
4. Removal from the mothers’ care would be disproportionate. Although the children remained at risk of emotional harm from family conflict, their current care was at least just adequate and removal would cause greater trauma. Applying the least interventionist principle in Re O (Care or Supervision Order), the appropriate order was supervision rather than care or removal.
5. Contact had to develop gradually. A joint contact involving A and B was rejected as likely to damage B’s fragile relationship with the fathers. B’s contact was fixed at eight occasions annually, with support capable of being relaxed when B and the fathers were ready. The court emphasised that the fathers should not force the pace and the mothers should actively support contact.
6. The section 91(14) restriction was justified by the exceptional length and damaging effect of the litigation, including its effect on M1’s mental health and the children’s welfare. Following Re P (Section 91(14) Guidelines), the restriction was limited in duration and scope and was proportionate to the harm it sought to prevent.

First-instance decision. The judgment records earlier substantive judgments in the same proceedings: [2013] EWHC 2305 (Fam) and [2013] EWHC 4150 (Fam).