H-B (Contact), Re

Direct contact with a parent ordinarily serves a child’s best interests and should be denied only in exceptional circumstances supported by compelling reasons. The court may nevertheless refuse direct contact where careful evaluation shows that an order would be futile and positively harmful, professional advice supports a gentler approach, and all practical alternatives have failed.

Appellate courts should respect a trial judge’s informed welfare evaluation, especially where the judge has long experience of the family. Protracted or unsuccessful intervention does not itself establish systemic failure.

Parental responsibility places duties on both parents. A parent should use all reasonable means to promote the child’s relationship with the other parent and cannot ordinarily shelter behind even a teenager’s determined refusal.

The father appealed against orders of HHJ Wildblood QC refusing direct contact with his two teenage daughters, permitting limited indirect contact and restricting further applications under section 91(14) of the Children Act 1989. Contact had ceased after an incident in 2008. Subsequent proceedings included expert assessments, therapy, fact-finding, mediation and repeated consideration of possible routes towards renewed contact.

The father principally argued that the judge should have obtained expert assistance to ensure that the daughters learned that earlier allegations of sexual and other misconduct had been rejected. He also alleged wider failures in the management of the proceedings and relied upon article 8 rights. The issues were whether the judge had prematurely ended attempts to restore direct contact and whether the contact and section 91(14) orders were properly open to him.

1. Appeal dismissed. The judge had correctly understood the governing law, had considered the importance of direct contact and had recognised the harm likely to result from its absence. His refusal of direct contact and his section 91(14) order were lawful welfare evaluations with which the Court of Appeal should not interfere.

2. The proceedings did not demonstrate inaction, prevarication or abdication by the family justice system. Courts had used CAFCASS, psychiatric evidence, therapy and mediation to pursue contact. Appropriate plans had failed in practice because of the family’s intractable difficulties. This case was materially different from Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104.

3. The judge was entitled to conclude that all practical measures had been tried. No party had pursued further expert evidence or offered a workable means of disclosing the fact-finding conclusions to the daughters. Given their ages, entrenched views and prolonged exposure to litigation, the judge could conclude that further proceedings should end. Wardship, a different professional team, contact through paternal relatives, an immediate child arrangements order or a residence order offered no sufficient basis for overturning that assessment.

4. Direct contact with the non-resident parent is ordinarily in a child’s best interests and should be refused only in exceptional circumstances. On the particular evidence, however, an immediate order would have been futile and positively damaging. The professional advice uniformly supported a gentler approach.

5. The section 91(14) restriction was justified because the father intended to continue the litigation and further proceedings would be very damaging to the daughters.

6. Vos LJ and the President emphasised that parental responsibility entails duties as well as rights. Parents have primary responsibility for overcoming obstacles to beneficial contact. A parent cannot ordinarily rely upon a child’s refusal, including the refusal of a teenager, without using all reasonable methods of persuasion and discipline falling short of brute force. The mother was urged to help the daughters form an accurate understanding of their father and restore their relationship with him.

1. Court of Appeal (Civil Division): Dismissed the father’s appeal against the contact and section 91(14) orders: [2015] EWCA Civ 389.

2. Bristol County Court: HHJ Wildblood QC refused direct contact, ordered limited indirect contact and information-sharing, and restricted further child arrangements applications under section 91(14) of the Children Act 1989.