T (A Child) (Suspension of Contact)

Judicial participation in conciliation during private children proceedings does not ordinarily require recusal. Recusal is exceptional and depends on whether a fair-minded and informed observer would perceive a real possibility of bias.

An order terminating parent-child contact requires a welfare-based assessment and strict scrutiny. Contact should cease only exceptionally, for cogent reasons, where it would harm the child and no workable alternative remains.

An order under section 91(14) of the Children Act 1989 is exceptional. The affected party must receive notice, the material relied upon and an opportunity to make representations. Any restriction must serve the child’s welfare, be proportionate to the anticipated harm and last no longer than necessary.

A child lived with her mother and had experienced little contact with her father. Following prolonged and highly contentious family proceedings, the mother applied to terminate contact and restrict further applications by the father.

HHJ Hughes QC heard the applications in the father’s absence. She suspended contact indefinitely and prohibited him, under section 91(14) of the Children Act 1989, from applying for contact or another section 8 order without leave until the child reached ten.

The father appealed. The principal issues concerned the judge’s earlier participation in conciliation, procedural fairness, the welfare and Convention analysis supporting the cessation of contact, and the justification and proportionality of the section 91(14) order.

1. Appeal allowed. The orders indefinitely suspending contact and restricting applications under section 91(14) of the Children Act 1989 could not stand. The proceedings were remitted to a judge of the Family Division for rehearing.

2. Judicially assisted conciliation in private children proceedings does not itself disqualify a judge from retaining the case. Judicial continuity is encouraged. Recusal is justified only exceptionally, where a fair-minded and informed observer would conclude that there was a real possibility of bias. The judge’s indication that the father’s residence application was unlikely to succeed did not satisfy that test.

3. The judge was entitled to proceed in the father’s absence because he had informal notice of the hearing and was required to attend. However, she relied upon documentary allegations and professional recommendations which he may not have received and had no opportunity to answer. She also made final substantive orders after telling the parties that she would not determine the substantive hearing. Fairness required only an interim suspension, followed by an adjourned hearing after disclosure of the relevant material.

4. The indefinite cessation of contact lacked the required welfare analysis. The judgment did not balance the adverse matters against the benefits of an ongoing parental relationship, the previously positive contact, the statutory welfare checklist or the parties’ article 8 rights. Direct contact is ordinarily an important element of family life. It should be terminated only exceptionally, for cogent welfare reasons, after reasonable alternatives and the medium- and long-term position have been examined.

5. A section 91(14) order is exceptional. The affected person must understand the proposed order, its effect, its evidential basis and its intended duration, and must have a proper opportunity to make representations. The court must assess all relevant circumstances by reference to the child’s welfare. Because the order interferes with access to justice, it must be proportionate to the harm addressed and imposed for the minimum necessary period.

6. The judge did not explain why the restriction served the child’s best interests or why a five-and-a-half-year duration was necessary. The procedural deficiencies and absence of a welfare-based proportionality assessment rendered the order wrong. The court expressed no view on the merits of the applications to be reheard. The grandparents did not pursue their separate application, and no order was made upon it.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 719, allowed the father’s appeal, set aside the indefinite suspension of contact and section 91(14) restriction, and remitted the case to a judge of the Family Division for rehearing. No order was made on the paternal grandparents’ application.

2. Central Family Court: HHJ Hughes QC ordered on 3 July 2014 that the father’s contact be suspended indefinitely and that he could not, without leave, apply for contact or another section 8 order before December 2019.