Father v Mother

A child’s right to a relationship with both parents is a right of the child, not a duty imposed on the child. Direct contact should not be forced where an articulate child has consistently and clearly opposed it, contact causes distress, and the evidence shows no sufficient benefit to the children. The court must apply the welfare checklist in section 1 of the Children Act 1989, giving appropriate weight to the child’s wishes and feelings according to age and maturity. The child’s relationship with, and knowledge of, a parent may instead be maintained through limited indirect contact where that best serves welfare.

The father sought renewed direct contact with his two sons, aged 11 and nine, following earlier contact proceedings, findings of domestic abuse and a section 91(14) order. Permission to apply had initially been refused, but that decision was successfully appealed on natural justice and Article 6 grounds. Permission was subsequently granted and contact was managed through several hearings.

By the final hearing, the elder child consistently and emphatically opposed contact and found it distressing. The younger child was indifferent and found contact difficult without his brother’s support. There was no evidence that the mother had alienated the children. The central issue was whether direct contact remained in the children’s best interests.

1. The application for further direct contact was refused. The court directed that the children could receive monthly emails, with replies at their option, together with cards and letters at Christmas and birthdays.

2. Article 9 of the UN Convention on the Rights of the Child recognises the child’s right to a relationship with both parents. It does not impose a duty on the child to maintain such a relationship or justify forcing contact against clearly expressed wishes.

3. Under Article 12, a child capable of forming views must have the opportunity to express them and those views must receive due weight according to age and maturity. The elder child’s clear, consistent and articulate opposition therefore deserved substantial weight, even though he was probably not Gillick competent.

4. The court should be slow to compel a child to undertake contact which causes stress or distress, unless there are very good reasons to believe that encouragement would produce a beneficial relationship in the longer term. That qualification did not apply because the child had tried contact and remained adamantly opposed.

5. Applying the welfare checklist in section 1 of the Children Act 1989, direct contact was not in either child’s best interests. The benefits identified were principally for the father. Limited electronic contact could preserve the children’s knowledge of their father and their family identity without compelling direct contact.

• High Court (Family Division): on 16 March 2023, an appeal from the refusal of permission was allowed on natural justice and Article 6 grounds. The citation of that decision is not stated in the judgment.

• High Court (Family Division): the present application was determined at final hearing, with direct contact refused and limited electronic contact provided for.