T (Interim Care Order: Arrangements for Contact), Re

In interim public-law proceedings, contact arrangements must be determined by a careful, child-focused evaluation of welfare. An earlier agreement or recital recording a contact plan does not remove the need to reconsider welfare when circumstances change. A court should not impose direct contact merely because a child has previously been expected to have it, particularly where the child is distressed or resistant and there are allegations of serious abuse. The court must address the relevant welfare factors, including emotional needs, risk of harm, background circumstances and the parent’s capability to meet the child’s needs. Restrictions on contact must also be matched to the appropriate statutory route under the Children Act 1989.

The Local Authority appealed from an interim case-management decision of His Honour Judge Greensmith in the Family Court in Liverpool. The proceedings concerned a three-and-a-half-year-old child subject to an interim care order and placed with a maternal great aunt. After an agreed contact plan recorded in recitals to an earlier order, three supervised videocalls occurred and were assessed by the Local Authority as distressing to the child. The Local Authority sought to continue videocall contact while undertaking further work, but the Judge directed immediate supervised face-to-face contact twice weekly and adjourned the Local Authority’s application under section 34(4) of the Children Act 1989. The central issues were whether the earlier recital was enforceable, whether the Judge had properly assessed welfare, and whether direct contact should have been imposed.

1. Appeal allowed. The contact recitals in the order of 22 March 2024 were set aside. The matter was remitted urgently for consideration of interim contact and case management.
2. Contact decisions at an interim stage require a careful and conscientious evaluation of the child’s welfare. An earlier agreement or contact plan cannot be treated as determinative where subsequent events materially alter the evidential and welfare position. The three videocalls, assessed as distressing to the child, amounted to a significant change from the circumstances in which the earlier plan had been made.
3. The Judge failed to conduct a reasoned welfare analysis. He did not meaningfully address the risk of emotional harm from imposing direct contact against the child’s firm resistance, her emotional needs, the mother’s capability to meet those needs, or the serious allegations and admitted abuse forming part of the relevant background. The reference to heavy supervision addressed physical or sexual risk and failed to grapple with the asserted risk of emotional harm.
4. In failing to explain why direct contact should be imposed before the child’s resistance had been properly understood, the Judge reached a premature decision. The reasoning was also internally contradictory: it questioned the child’s distress while contemplating investigation of that distress, and treated the issue as non-compliance with an earlier order rather than as a fresh welfare decision.
5. The Court did not finally determine whether the earlier recitals were enforceable as free-standing orders. The authorities cited did not convincingly establish that proposition. The Court nevertheless emphasised that children’s orders should contain short, neutral and necessary recitals, placed at the end or in a schedule, and should not record purported judicial views that did not form part of the decision.
6. The adjournment of the section 34(4) application was not itself wrong. Because the Local Authority sought only interim restriction to indirect contact and did not intend to refuse contact, an application under section 34(2) may have been more appropriate, and determination under section 34(4) would have been premature.

• Court of Appeal (Civil Division) — [2024] EWCA Civ 469: appeal allowed; the contact recitals were set aside and the matter remitted for urgent consideration of interim contact and case management.
• Family Court in Liverpool — decision of His Honour Judge Greensmith on 22 March 2024: directed supervised direct contact twice weekly and adjourned the Local Authority’s section 34(4) application.