F v J & Ors

When deciding contact and parental responsibility applications, the court must apply the welfare checklist and assess the child’s welfare in the circumstances existing when the decision is made. Earlier intentions about shared parenting may evidence commitment, but do not determine the outcome. Contact may require staged progression where the child benefits from a relationship with a biological parent but the resident carers’ distress risks impairing their parenting. In deciding whether to grant parental responsibility, the court must consider the applicant’s commitment, attachment and reasons for applying, together with the contact order and the risk of destabilising the child’s primary home. Information-sharing orders may provide a proportionate alternative.

F, L’s biological father, applied for child arrangements orders providing progressively increased direct and indirect contact and for a parental responsibility order. J, L’s biological and legal mother, and B, J’s wife and a step-parent with parental responsibility, opposed parental responsibility and sought more limited contact. L was represented by a Cafcass rule 16.4 Guardian.

The parties had originally contemplated F playing an active role in L’s upbringing, but their co-parenting relationship broke down before L’s birth. The issues were the appropriate frequency and progression of contact, whether F should have parental responsibility, and the form of indirect contact.

1. Contact. The court ordered contact broadly in accordance with the Guardian’s final recommendation. Contact was to begin every eight weeks, increasing to every four weeks after 12 months or six sessions. When L reached three and a half, the first extended session was to last six hours, with later sessions capable of extending to eight hours. The arrangement was a baseline, with further contact by agreement.
2. The governing approach was the welfare checklist under the Children Act. The critical balance was between the benefit to L of knowing and developing a relationship with his biological father and the risk that J and B’s care of L would deteriorate because of the impact of contact upon them. The court accepted that L’s young age favoured more frequent contact, but balanced this against the evidence concerning J and B’s resilience.
3. The court preferred the Guardian’s evidence to Dr Pettle’s recommendation of four-weekly contact because the Guardian had observed J and B after interim contact and was better placed to assess their ability to cope. The court accepted that stress associated with contact might reduce after repeated contact, but chose caution on the timing of the increase.
4. Parental responsibility. Under s.12(2A) of the Children Act, the court had to remain mindful of the contact order. It also considered the applicant’s commitment, attachment and reasons for applying, identified in Re H (Parental Responsibility) [1988] 1 FLR 855. On the facts, the limited but increasing contact, J’s fears of losing L and of continuing disputes, and the availability of specific-issue information orders meant that parental responsibility risked destabilising J and was not in L’s interests.
5. The court refused parental responsibility, ordered specific-issue notifications as orders rather than undertakings, and directed indirect contact every four weeks when direct contact occurred every eight weeks.