R ( A Child : Appeal : Termination of Contact)

Termination of parent-child contact is a last resort. The court must consider all realistic measures capable of maintaining or reconstituting the relationship and must take a medium- and long-term view of the child’s welfare. A final no-contact order is premature where further therapeutic work or other practical steps may address the causes of the child’s distress.

On appeal, the court may intervene in an evaluative welfare decision where significant matters have been overlooked or given insufficient weight, and the omission was material to the outcome. Findings that a child has suffered, or remains at risk of suffering, significant emotional harm in the care of the residential parent must be reflected in the welfare analysis and may require further public-law enquiries before private-law orders are finalised.

The father appealed against orders made by His Honour Judge Thorp on 27 July 2018. R was to live with his mother, have only indirect contact with his father, and be subject to a Children Act 1989 section 91(14) leave requirement. Permission was granted on the issues of direct and indirect contact and the section 91(14) order, but refused in relation to residence.

The first-instance judge had found that the mother had emotionally harmed R by alienating him from his father and that R remained at risk of harm, while finding no harmful conduct by the father. The central issue was whether the judge had been entitled finally to terminate efforts to re-establish direct contact without further investigation of therapeutic resources and the consequences of the findings.

1. Appeal allowed in part. The final decision to make no order for direct contact was wrong. The section 91(14) order concerning applications to spend time with R was discharged. Indirect contact continued pending further consideration. The section 91(14) order concerning residence was not determined.

2. An appellate court must read the judgment as a whole and respect the trial judge’s evaluative role. It may nevertheless intervene where a significant matter has been overlooked, given insufficient weight, or given weight that it cannot reasonably bear, and the flaw is material to the outcome. The appellate court must not substitute its own evaluation merely because another conclusion is possible.

3. The welfare assessment required a medium- and long-term evaluation. The absence of a relationship with the father and paternal family, the false narrative about the father, and the enmeshed relationship with the mother were distinct sources of potential long-term emotional harm. The first-instance judge had not given those matters sufficient weight.

4. Contact between parent and child should be terminated only in exceptional circumstances, for cogent welfare reasons, where there is no alternative and only after all necessary steps reasonably demanded in the circumstances have been considered. The court has a positive duty to promote and, where necessary, reconstitute the relationship. The child’s welfare remains paramount.

5. The findings that R had suffered significant emotional harm in his mother’s care, and was likely to suffer further harm, could not be treated as immaterial to the welfare outcome. They required further consideration of therapeutic work with the mother and the possible role of the local authority. The lack of an identified resource did not establish that no resource was available.

6. The conjoined fact-finding and welfare hearing had left the parties and local authority without a proper opportunity to respond to the findings through an amended care plan or concrete therapeutic proposal. The court had therefore not reached the end of the road. The options of further investigation and, if necessary, a suspended transfer of residence had to remain available.

7. The issue of indirect contact was not finally determined because it depended upon the outcome of reconsideration of direct contact. The section 91(14) order concerning time with the father fell with the direct-contact decision. The separate order concerning residence remained in place because residence had not been appealed.

• High Court (Family Division): Appeal from orders made by His Honour Judge Thorp on 27 July 2018. Permission to appeal the residence order was refused; permission was granted on direct contact, indirect contact and the Children Act 1989 section 91(14) order. The appeal was allowed in part.