The Mother v Jamie MacDougall & Anor

In determining child arrangements, the court must focus on the child’s welfare, while applying the statutory presumption that parental involvement furthers welfare unless the contrary is shown. Direct contact may be withheld where the history shows that it is likely to produce further conflict, distress or dysregulation, even if earlier contact was positive. Indirect contact may be ordered instead.

A restriction on further applications under section 91(14) of the Children Act 1989 is a serious measure affecting Convention rights, but may be justified for a proportionate period where prolonged proceedings are harming the child and parent. The duration should reflect the need for a substantial break from litigation.

This was a case management and welfare decision concerning B, a four-year-old child. The father sought child arrangements and parental responsibility orders, while the mother sought variation of an existing child arrangements order. Proceedings had continued for most of B’s life.

Direct contact had been ordered previously, but only three supervised contacts had taken place over the relevant period. The court considered the father’s conduct during disputes about contact, the effect of police attendance following a safeguarding allegation, B’s troubling behaviour at school, and the recommendations of the children’s guardian.

The central issues were whether direct contact remained in B’s best interests, whether contact should instead be indirect, and whether restrictions on further applications and related protective orders were justified.

1. The court proceeded notwithstanding the father’s loss of legal aid and lack of representation. Although he was significantly disadvantaged, the judge’s familiarity with the proceedings and the father’s ability to communicate meant that the fairness of the proceedings was not fundamentally undermined.

2. Section 1(2A) of the Children Act 1989 creates a presumption that parental involvement furthers the child’s welfare unless the contrary is shown. The decisive consideration remained B’s best interests. The judge took account of the generally positive limited contacts, the father’s autism and his difficulties in controlling his reactions, the absence of stable and systematic contact, the distress caused by the December incident, B’s inability to regulate his behaviour at school, and the stress imposed on the mother and B by continuing proceedings.

3. On the evidence, ordering further direct contact was likely to result in non-compliance with arrangements, renewed conflict and increased distress and dysregulation for B. The court therefore ordered indirect contact only, through letters or cards sent via the maternal grandmother, six times a year.

4. A section 91(14) order under the Children Act 1989 was justified. It was a serious order because it affected the father’s rights under Articles 6 and 8, but B had been involved in proceedings for three of his four years. A three-year restriction was proportionate and would provide a necessary period of stability.

5. The child arrangements order providing that B live with the mother was continued. No prohibited steps order was made because there was no sufficient basis to prevent the father approaching or removing B from school, although the order contained a recital that he should refrain from doing so. The restriction on social-media publication continued until B was 16. The enforcement application was dismissed, and the non-molestation order was continued for three years.