H (Children), Re

In private-law child-contact proceedings, the court must consider family life, welfare, and the child’s ascertainable wishes and feelings. Indirect contact is ordinarily desirable where direct contact cannot be achieved, but children should not be burdened with deciding whether to see a parent.

An order under section 91(14) of the Children Act 1989 should be made sparingly and for proper reason. An application labelled as enforcement cannot secure direct contact where the existing order contains no enforceable obligation. For a child aged 16 or over, a section 8 order requires exceptional circumstances. Appeal dismissed.

The father appealed against orders made in November 2014 by Mr Recorder Williams in the Family Court in Newcastle-upon-Tyne. The orders made no order for contact, dismissed his application to enforce an August 2013 indirect-contact order, and confirmed a one-year order under section 91(14) of the Children Act 1989.

The parties’ two sons lived with their mother and had not seen their father for several years. The father appeared in person. The mother did not attend. The central issues were whether the earlier orders were capable of enforcement, whether the section 91(14) order was properly made, and whether further wishes-and-feelings evidence should have been obtained.

The court delivered a single judgment prepared by Mr Justice Cobb, representing the agreed views of Lord Justice Tomlinson, Lord Justice Floyd and Mr Justice Cobb. The appeal was dismissed.

1. The court recognised the importance of the mutual enjoyment of parent and child, and the Family Court’s responsibility to facilitate contact where reasonably demanded by the circumstances. It also recognised that indirect contact is ordinarily desirable where direct contact cannot be achieved: Re P (Contact: Supervision) [1996] 2 FLR 314. The court had to consider the children’s ascertainable wishes and feelings in light of their age and understanding.
2. The consent order requiring the children to decide whether to see their father was probably unwise. It placed on them a responsibility they should not have been asked to bear, applying the reasoning in Re S (Contact: Intractable Dispute) [2010] EWCA Civ 447, [2010] 2 FLR 1517.
3. The August 2013 order was materially misexpressed. The recorder’s intention was better reflected by an order stating that there should be no order for direct contact, rather than an order stating that there should be no direct contact. The former did not prevent indirect contact from later developing into direct contact. The court invited correction under the slip rule.
4. Orders under section 91(14) of the Children Act 1989 should be made sparingly, for proper reason, and after relevant considerations have been weighed. The order should identify the applications covered; an absolute prohibition on applications would not generally be contemplated. The guidance in Re P (section 91(14) Guidelines)(Residence and Religious Heritage) [1999] 2 FLR 573 had not been evaluated. The issue was academic because the order was not under appeal and had expired.
5. The supposed enforcement application was in substance an application to vary the indirect-contact order or obtain a fresh section 8 child-arrangements order. The earlier orders imposed no obligation on the children to reply and no obligation on the mother to accept, read or show the communications. Unlike the order considered in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, there was therefore nothing effective to enforce. In addition, no order could have been made for T, aged 16, absent exceptional circumstances under section 9(6) of the Children Act 1989.
6. Although the manner of dismissing the application without an oral hearing was questionable, the recorder could not be criticised for refusing an application incapable of effective enforcement. The appeal therefore failed.

1. Court of Appeal (Civil Division) — Permission to appeal was granted by Ryder LJ. The appeal against the November 2014 orders was dismissed: [2015] EWCA Civ 1216.
2. Family Court in Newcastle-upon-Tyne — Mr Recorder Williams made no order for contact, dismissed the father’s application to enforce indirect contact, and confirmed a one-year order under section 91(14) of the Children Act 1989.