P (A Child)

In child-contact proceedings, the child’s welfare is the primary focus. A court may uphold a substantial restriction on contact where accepted evidence shows that contact is emotionally unsettling and destabilises the child’s placement, even if the local authority’s review process was seriously flawed. Structured conditions under the Children Act 1989 s 34(7) may provide a positive means of regulating contact. An order under the Children Act 1989 s 91(14) must be proportionate and preserve access to the court for meritorious applications.

P was subject to a care order and lived with her maternal grandparents, with her mother also in the household. Her father had longstanding mental health difficulties and initially enjoyed fortnightly supervised contact. Following concerns about his behaviour during contact and its effect on P, the local authority reduced contact to four sessions a year without carrying out the promised three-monthly reviews or properly engaging the father.

HHJ Butler dismissed the father’s applications to discharge the care order and increase contact. He imposed conditions under the Children Act 1989 s 34(7) and made a five-year restriction under s 91(14). The father appealed, challenging the contact decision, the treatment of earlier findings and the restriction on applications. The central issues were whether the decisions could stand despite the local authority’s procedural failures and whether the s 91(14) order was proportionate.

The Court of Appeal unanimously dismissed the appeal and upheld HHJ Butler’s orders.

1. Earlier findings and fresh evidence. The father could not use these proceedings to challenge Recorder Goldrein’s earlier factual findings without a successful appeal or an application to reopen them. A later psychiatric report obtained without the relevant medical and legal records was of limited value and did not justify reopening the diagnosis or ordering a retrial.
2. Contact. The local authority properly conceded that its review of contact had been unsatisfactory, that the father had not been adequately engaged and that supervision had been lamentable. The judge should have investigated those failures more fully. Nevertheless, the evidence accepted by him established that P was emotionally unsettled by some contact sessions and that this compromised the stability of her placement. The child’s welfare was the primary, indeed sole, focus. The outcome of the contact decision could not therefore be said to be wrong.
3. Structured contact. Conditions under the Children Act 1989 s 34(7) were a positive and justified means of regulating contact. They offered a practical way to reduce the risk of upsetting conduct where the father had not accepted the diagnosis or achieved change through treatment. Compliance with the conditions, together with improved post-contact behaviour by P, could justify later increases in contact.
4. Restriction on applications. An order under s 91(14) substantially interferes with a parent’s ordinary right to apply to the Family Court, so proportionality was required. Although the father was entitled to challenge the radical reduction in contact, the case he pursued was an exorbitant campaign directed largely to reopening settled findings and was without merit in the form presented. The five-year restriction was justified by its likely impact on P and her carers. It did not exclude meritorious applications, since permission remained available, preserving the father’s Article 6 and Article 8 rights.

The court nevertheless expressed the hope that the local authority would adopt a more positive and supportive approach, taking the father’s mental health difficulties into account and considering appropriate professional assistance.

• Court of Appeal (Civil Division): Appeal dismissed on all grounds and HHJ Butler’s orders upheld: [2015] EWCA Civ 170.
• Chester Family Court: On 10 September 2014 HHJ Butler dismissed the father’s applications to discharge the care order and increase contact, imposed contact conditions under the Children Act 1989 s 34(7), and made a five-year order under s 91(14).