VB v JD & Ors

Contact between a child and a non-resident parent or sibling should be terminated only in exceptional circumstances, as a last resort, and after the court has grappled with all reasonably available alternatives. The court must consider the medium- and long-term consequences, not merely the immediate distress caused by a change. Different applicants should be assessed separately where their positions and risks differ. Where contact itself is warm, affectionate and beneficial, expert evidence may be required before the relationship is ended. Conduct occurring outside contact may affect welfare considerations, but it does not logically establish that contact itself should cease.

The mother appealed against an order made by HHJ Meston QC in the Family Court at Bournemouth. The order ended all direct contact between her and A, aged six, and between A and her half-sister B, aged 17, while permitting monthly indirect contact. The order followed a history of allegations by B that the father had abused her, repeated disputes and incidents outside contact which had caused the father considerable distress. The central issues were whether the judge had adequately considered alternatives, whether the mother and B required separate assessment, and whether expert evidence was necessary to evaluate the consequences for A.

1. Appeal allowed in part and matter remitted. The order ending direct contact was set aside to the limited extent necessary for reconsideration. The matter was remitted to the designated family judge at Bournemouth for further directions.
2. The governing principles, drawn from Re J-M (A Child) (Contact Proceedings: Balance of Harm) [2015] 1 FLR 838, required the welfare of A to remain paramount, recognised the usual importance of contact, and required the court to take all reasonably available measures to promote contact before abandoning it. Contact should be terminated only in exceptional circumstances, for cogent reasons, as a last resort and where it would harm the child’s welfare.
3. The judge had not expressly considered a very limited form of supervised or identity contact. That omission was material because the court had to grapple with all available alternatives, and occasional contact could serve a different purpose from the extended monthly contact previously arranged.
4. The positions of the mother and B required separate consideration. The evidence showed a particular risk arising from B’s continuing belief that the father posed a danger, whereas the mother’s position was more qualified. The court could not treat the two relationships as indistinguishable.
5. The harmful incidents relied upon had occurred outside contact. Although they had understandably influenced the father’s view, ending contact did not itself prevent their recurrence. The fact that contact had continued without incident after June 2017 was also relevant and had not been addressed by the judge.
6. Because contact had been warm and enjoyed by A, greater consideration should have been given to obtaining evidence from a child and adolescent psychiatrist. The instruction should be carefully framed and should address the competing welfare consequences of the available options. The appellate court did not itself order renewed contact, but observed that occasional independently supervised contact, particularly with the mother, required serious consideration.
7. The mother abandoned her challenge concerning residence and the prohibited steps order. The future level of contact, if any, was left for determination on remission.

• High Court (Family Division): The appeal from the Family Court at Bournemouth was allowed to a limited extent. The matter was remitted for further directions.
• Family Court sitting at Bournemouth: HHJ Meston QC had ordered that A should have no direct contact with the mother or B, with monthly indirect contact and a three-year restriction on further applications under section 91(14) of the Children Act 1989.