A (A Child), Re

In contact proceedings, the child’s welfare remains paramount. It will ordinarily be in a child’s best interests to have a full and ordinary relationship with both parents, and each parent has responsibility for addressing significant obstacles to safe and beneficial contact. That responsibility does not require the court to make an order that is likely to cause emotional harm or fail in practice. The court must evaluate the child’s wishes and feelings, existing harm, parental vulnerability, the likely effect of pressure, the passage of time and the available evidence. A proposed therapeutic or staged solution should be properly advanced at first instance. Where a child is older, consistently opposed to contact, and expert evidence shows that contact would be harmful or ineffective, the court may refuse direct contact despite the absence of risk from the non-resident parent.

The father appealed against a decision of His Honour Judge Atkins in the Croydon County Court and Family Court concerning renewed contact with his 12-year-old son. Contact had stopped in 2007 after earlier private-law proceedings, and the father’s renewed application, issued in 2010, was not determined until September 2014. By then the child consistently opposed direct and indirect contact, while the mother was found to have severe anxiety, depression and post-traumatic stress symptoms connected with contact.

The judge refused a change of residence or direct-contact order, but permitted limited indirect contact through CAFCASS. The father argued that the mother’s hostility, her responsibility to facilitate contact, the finding of significant harm and the statutory presumption of parental involvement required a different outcome. The central issue was whether the judge’s welfare evaluation and refusal of direct contact were legally or evidentially flawed.

1. Appeal dismissed on contact and residence. The judge was entitled to refuse a change-of-residence order, whether immediate, suspended or adjourned, and to refuse direct contact. Limited indirect contact through CAFCASS remained in place.
2. The child’s welfare, both present and future, was paramount. Section 1 of the Children Act 1989, including the presumption in section 1(2A) that parental involvement will further welfare unless the contrary is shown, had to be taken into account. The presumption concerned involvement of some kind, direct or indirect, and did not require a particular division of the child’s time.
3. It was normally in a child’s best interests to develop a full, real and ordinary relationship with each parent. Both parents shared responsibility for addressing significant difficulties so that safe and beneficial contact could be achieved. That responsibility did not justify imposing contact where the evidence showed that an order would be counterproductive or harmful.
4. The judge’s welfare analysis could have referred more expressly to his finding that the child had suffered significant emotional harm. Nevertheless, read in context, his reasoning was not wrong. He was entitled to rely on the guardian’s and psychologist’s evidence that direct contact from a standing start would probably fail, increase the mother’s anxiety and distress the child, and damage the child’s view of his father. The father’s more developed proposal for specialist therapeutic intervention had not been properly put before the judge and could not found criticism of his decision.
5. The child was nearly 12, consistently opposed to all contact, and had been separated from his father for many years. The mother was emotionally vulnerable and the child’s opposition was closely entangled with his relationship with her. In those circumstances, the judge was entitled to conclude that direct contact would not work, notwithstanding that the father presented no current risk.
6. The court declined to make an order about information to the school. The issue had not been formally developed below and could not properly be determined as an appeal from the judge’s decision.

• Court of Appeal (Civil Division): [2015] EWCA Civ 910. Appeal from the Croydon County Court and Family Court dismissed on the issues of contact and residence. No order was made concerning information to the school.