H-W (Child), Re

In child-contact proceedings, the court must determine the child’s welfare on the evidence available at the time of the decision. It need not try every theoretical route to direct contact. It must weigh the prospects of each option, its benefits, and the harm involved, while taking a medium- and long-term view. A first-instance judge may rely on an experienced CAFCASS assessment and decline further expert evidence where renewed contact is unlikely to work and may cause lasting emotional harm. Earlier appellate observations in continuing proceedings do not dictate the later welfare decision. Direct contact may therefore be refused at the present stage, while proportionate indirect contact and family assistance preserve a possible relationship.

W’s parents had been involved in near-continuous litigation about his contact with his father since infancy. Following earlier findings and welfare decisions, direct contact had ceased in 2011. In July 2014, Judge Newton refused to order direct contact, although she regarded its re-establishment as the ultimate aim. The Court of Appeal dismissed the father’s appeal in March 2015.

In May 2016, after receiving a further CAFCASS report and hearing evidence from both parents and the CAFCASS officer, Judge Newton dismissed the father’s renewed application for direct contact. She provided for indirect contact and made a family assistance order. The father appealed, arguing that the judge had failed to consider further expert assistance, W’s long-term interests, the original strategy for reintroducing contact, and the mother’s psychological position.

The Court of Appeal unanimously dismissed the father’s appeal.

1. Earlier appellate observations. Observations or guidance given at an earlier stage of continuing proceedings did not dictate the later welfare decision. Judge Newton was required, and entitled, to assess the circumstances as they stood in May 2016, with the benefit of fuller and more current evidence.
2. Assessment of possible courses. The court’s duty was to decide contact with the child’s welfare as the paramount consideration under section 1(1) of the Children Act 1989, having regard to section 1(3). That duty did not require the court to try every possibility which might theoretically achieve direct contact. The judge had to weigh the prospects of success, the benefits, and the harm which might result from each option.
3. Expert assistance and CAFCASS evidence. Judge Newton was entitled to rely on the advice of an experienced CAFCASS officer, while evaluating the evidence independently. The officer’s assessment was that direct contact was not feasible, further proceedings were harmful, and additional expert opinion would not progress the case. The judge was entitled to accept that assessment and decline further expert evidence.
4. Short-term and long-term welfare. Applying the approach in [2011] 2 FLR 912, the judge considered both immediate and longer-term welfare. Although a relationship with the father could be beneficial in the long term, the evidence indicated that renewed attempts would be protracted and risk enduring emotional harm. There was therefore no effective way forward for direct contact at that stage.
5. The refusal of direct contact did not mean abandoning the relationship. The judge properly maintained indirect contact and made a family assistance order under section 16 of the Children Act 1989. The Court of Appeal also declined to rely on an untested addendum report concerning events after the decision under appeal.

• Court of Appeal (Civil Division), [2017] EWCA Civ 154: dismissed the father’s appeal.
• Manchester Family Court, 17 May 2016, before Her Honour Judge Newton, case MA15P01297: dismissed the application for direct contact, provided for indirect contact, and made a family assistance order.
• Court of Appeal (Civil Division), March 2015: dismissed the father’s appeal against Judge Newton’s July 2014 decision refusing direct contact.
• Manchester Family Court, July 2014: refused direct contact but made a monitoring order.
• Manchester Family Court, July 2011: dismissed the application for direct contact and provided for indirect contact; the appeal to Judge Newton was dismissed in February 2012.