D (A Child), Re

Contact should not be refused merely because separated parents cannot behave civilly or co-operatively. Contact may nevertheless be suspended where parental animosity and the parents’ conduct have a serious and deleterious effect on the child, making suspension necessary for the child’s welfare. The focus is the impact of the parental conflict on the child, not parental incompatibility alone. An appellate court may uphold a serious no-contact order despite limited express analysis of the welfare checklist, provided the judgment gives sufficient, evidence-based reasons.

The father appealed from an order made by His Honour Judge Yelton on 23 October 2014 in the Cambridge County Court and Family Court, dismissing his application for a Child Arrangements Order for contact with his six-year-old son. Contact had stopped after allegations of harm, repeated failed attempts to reintroduce contact through the paternal grandparents, and evidence of the child’s severe distress when his father was mentioned. The first-instance judge found that the mother had not coached the child, but that the parents’ acrimonious relationship permeated their dealings and harmed him. The central issue was whether contact had been refused merely because the parents could not get on, and whether the welfare-based reasoning was sufficiently explained.

The Court of Appeal, in the judgment of Lady Justice King with which Lord Justice Elias agreed, dismissed the appeal.

1. Contact and parental conflict. The inability of parents to behave civilly and co-operatively is not, by itself, a reason to refuse contact. In exceptional cases, however, parental animosity and the parents’ consequent behaviour may seriously harm the child. Where that harm makes contact presently unworkable, the court may reluctantly suspend contact for a period, with the child’s welfare as the paramount consideration.
2. Application to the evidence. The decision was based on the effect of the parents’ prolonged conflict on the child, not on the mere fact that they could not get on. The judge had considered the history of repeated attempts to establish safe contact, the child’s disturbing distress and aggression, the father’s conduct towards the mother, and the reports of Ms Barratt. The finding that the mother had not coached the child was supported by the evidence and could not be revisited on appeal.
3. Appellate review. The Court of Appeal was not entitled to reopen the judge’s findings where they were consistent with the evidence and involved no misdirection. Although the judgment would ideally have analysed the welfare checklist and the reports in greater detail, it gave sufficient explanation, supported by the evidence, for the conclusion that the child’s welfare presently required no contact.
4. Judgment-writing guidance. When making a serious order preventing contact, particularly where both parties are litigants in person, the judge should explain clearly how the welfare checklist, expert or social-work evidence, and findings about the parties support the order. The omission of fuller analysis does not itself require reversal where the reasoning is otherwise sufficient.
5. The appeal was therefore dismissed. The no-contact order stood, subject to the possibility that circumstances might change in the future.

• Court of Appeal (Civil Division) — [2015] EWCA Civ 829: appeal dismissed.
• Cambridge County Court and Family Court — His Honour Judge Yelton’s order dated 23 October 2014 in case CB13PO1084: application for a Child Arrangements Order and contact dismissed.