G (Children : Intractable Dispute)

In private-law children proceedings, welfare remains paramount. The statutory presumption that parental involvement furthers welfare is strong but not absolute, and yields where involvement risks harm. The court must take all reasonable steps to promote contact, assess realistic options, and give proper weight to both the harm of losing a parental relationship and the children’s wishes and feelings. Contact may be ended only exceptionally and as a last resort. Delay must be addressed diligently, fairly and effectively, but prolonged proceedings do not alone establish a breach of Articles 6 or 8. A restriction under section 91(14) is exceptional and must be carefully tailored to the welfare harm it prevents.

The father appealed against final orders made by HHJ Handley in the Family Court at Northampton on 2 July 2018. The orders provided for the children to live with their mother, dismissed the father’s applications for residence and contact, prohibited direct contact, and restricted further applications for three years without permission.

The father alleged procedural unfairness, delay, failures to pursue contact, reliance on disputed matters, and disproportionate use of section 91(14). The central questions were whether the proceedings breached Articles 6 or 8, whether the judge had taken all reasonable measures to promote contact, and whether the restriction on further applications was justified and proportionate.

The Court of Appeal unanimously dismissed the appeal.

1. Governing principles. Welfare is paramount. The presumption under the Children Act 1989 that parental involvement furthers welfare is very strong but is displaced where involvement would put a child at risk of harm. The court must take all reasonable measures to promote contact, adopt a medium- and long-term perspective, and terminate contact only exceptionally and as a last resort. Delay must be addressed expeditiously, fairly and effectively, consistently with Articles 6 and 8 and the guidance in J-M (A child) [2014] EWCA Civ 434, Kopf v Austria [2012] 1 FLR 1199, and Glaser v United Kingdom (2000) 33 EHRR 1.
2. Unproven allegations. The court must distinguish allegations from facts found. It cannot base its decision, directly or through professional assessments, on disputed allegations that remain unproved, or on a factual premise inconsistent with findings. The unresolved allegations of domestic abuse had not been found proved, but neither had they been disproved; they were therefore rightly left out of account.
3. Realistic options and welfare. The judge had identified and evaluated the realistic options. Indirect and supervised contact had failed, further assessment was not proposed, and the father was unwilling to attempt supervised contact again. The findings that the children would suffer emotional harm from unwanted direct contact and that the father had lost sight of their welfare were securely based on the evidence. The case was distinguishable from Re D [2004] EWHC 727 (Fam) and Re A (Contact: Human Rights Violations) [2013] EWCA 1104, where one parent had blocked contact and the other was blameless.
4. Section 91(14). The order was justified by the exceptional litigation history and the need to protect the mother and children from incessant applications. Its three-year duration was proportionate and remained compatible with a possible therapeutic restoration of contact. The resulting orders were upheld.

• Court of Appeal (Civil Division). On 3 April 2019, the court dismissed the father’s appeal: [2019] EWCA Civ 548.
• Family Court at Northampton. HHJ Handley made final orders on 2 July 2018, including child arrangements orders, no direct contact, indirect contact, and a three-year section 91(14) restriction.
• Permission and transfer. Williams J granted permission to appeal on 14 December 2018, confirmed by order dated 22 January 2019, and transferred the appeal under rule 30.13 of the Family Procedure Rules 2010.