SL v JA & Anor

In an appeal concerning child arrangements, a court assessing supervised contact must evaluate both the risk of emotional harm from exposure to parental conflict and the harm caused by restricting the child’s relationship with a parent. Strong wishes and feelings remain relevant even where the court concludes that they cannot safely be acted upon or may have been influenced. The court must consider whether risks can be managed by arrangements falling between unrestricted and fully supervised contact. A restriction under s91(14) relating to residence does not automatically justify the same restriction in relation to contact. These issues must be considered separately and in the overall balance.

The mother appealed from orders made by the Family Court at Canterbury concerning her daughter, U. The orders dismissed her application for a change of residence, required her contact with U to remain supervised, imposed a three-year restriction under s91(14) on further applications, refused an enforcement application and made related directions.

Permission to appeal was granted on grounds concerning the treatment of U’s wishes and feelings and the assessment of emotional risk. The central issues were whether the judge had adequately assessed U’s strongly expressed wish to spend time with her mother, the competing risks arising from supervised contact, and whether the residence and contact aspects of the s91(14) restriction should have been considered separately.

1. Appeal standard. Under Rule 30.12(3), an appeal lies only where the decision was wrong or unjust because of a serious procedural or other irregularity. The appellate court must respect the trial judge’s evaluative advantage and apply the principles in Piglowska v Piglowski [1999] UKHL 27.
2. Residence. The decision that U should remain based with her father was not open to challenge. It rested on an earlier careful assessment, including expert evidence, and the more recent material did not justify reopening that issue.
3. Wishes and feelings. A child’s strong or heartfelt views may properly be rejected because they are not in the child’s best interests or because of emotional turmoil. That does not mean that the feelings are unreal or insignificant. They must be taken into account and managed, particularly where emotional harm is central to the decision. The judge had accepted the Guardian’s conclusion that U’s views echoed her mother’s without sufficiently examining the circumstances or the fact that U’s views were not wholly aligned with her mother’s.
4. Risk assessment. The judge considered the risk of U being drawn into the parental dispute but did not adequately balance it against the likely harm to the mother-daughter relationship caused by a highly restricted regime. The court also needed to consider whether an intermediate arrangement could sufficiently manage the risk. The evidence that U was subsequently settled and happy was not enough to cure the reasoning gap at the time of decision.
5. Separate treatment of contact. The restriction on applications concerning residence could be justified independently. It did not follow that the same conclusion was appropriate for contact. The supervised-contact decision and the related s91(14) restriction therefore could not stand.
6. The appeal was allowed in relation to the spending-time arrangements and the related part of the s91(14) order. Those issues were remitted for rehearing before a different Circuit Judge. Existing supervised contact was to continue meanwhile. No view was expressed on the eventual outcome.

• High Court (Family Division): Appeal from orders made by His Honour Judge Scarratt in the Family Court at Canterbury. The appeal was allowed in part, with the spending-time arrangements and related s91(14) restriction remitted for rehearing.