J & K v M

In an application by grandparents for contact, the child’s welfare is paramount. There is no presumption that a grandparent who has permission to apply is entitled to contact. Contact is ordered only where it serves the child’s interests.

A resident parent’s hostility is not, by itself, sufficient to prevent contact. It may nevertheless be a powerful factor where compelling contact would cause serious emotional harm to the child through its effect on the primary carer. The court must weigh the benefits of wider family relationships, including identity and cultural connections, against the likely emotional and practical consequences for the child and carer. Indirect contact may be appropriate where direct contact is presently contrary to welfare.

The paternal grandfather and step-grandmother applied for direct contact with a six-year-old child. They had previously enjoyed regular overnight contact, but it had ceased for about three years after the child’s father, who was serving a sentence for murder, began contact proceedings and the applicants supported him.

The application was initially refused by HHJ Walker. That decision was overturned on appeal by MacDonald J on procedural-fairness grounds and the matter was remitted for rehearing. The issue was whether direct contact, including the possibility of monthly overnight contact, served the child’s welfare in light of the applicants’ relationship with the father, the mother’s opposition, and the effect of contact arrangements on the child’s primary carer.

1. Outcome. The application for direct contact was refused. Monthly indirect contact by letters, cards and presents was permitted. The judge indicated that no further application should be made for at least three years.
2. The court applied the welfare checklist in the Children Act 1989. The child’s welfare was paramount. The applicants’ status as grandparents created no presumption in favour of contact, following Re A (Section 8 Order: Grandparent Application) [1995] 2 FLR 153.
3. The child’s previous positive relationship with the applicants, the value of knowing the wider paternal family, and the possible benefit of a positive Afro-Caribbean connection were genuine advantages. They did not determine the application. The child already knew of his paternal family through contact with his father and paternal grandmother.
4. A resident parent’s hostility is not automatically decisive. The authorities recognise that it may amount to a cogent reason against contact where compelling contact creates a serious risk of emotional harm. The court considered Re S (Contact: Grandparents) [1996] 1 FLR 158 and Re D (A Minor) (Contact: Mother’s Hostility) [1993] 2 FLR 1. The applicants’ hostility towards, and lack of insight into the mother’s position, were themselves relevant welfare factors.
5. The mother was the child’s primary carer and had lost trust in the applicants. Requiring her to support monthly direct or overnight contact would be traumatic and would likely affect the child’s emotional stability. That impact had not been adequately considered in the Cafcass report. Weighing the competing factors, the adverse impact on the mother and child outweighed the benefits of direct contact.
6. An order under section 91(14) of the Children Act 1989 was unnecessary because a grandparent already requires permission to apply. The permission requirement protects the child and parent from excessive litigation. The court nevertheless considered it strongly in the child’s interests that there be no further court cases for at least three years.

1. High Court (Family Division). The application was reheard after the earlier refusal was overturned and remitted. Direct contact was refused, with indirect contact permitted.
2. High Court (Family Division). HHJ Walker refused the application on 4 October 2023. MacDonald J allowed the appeal on procedural-fairness grounds on 5 February 2024 and remitted the matter.