XX v ZZ & Ors

In determining arrangements for a child, the court must apply the welfare checklist and assess the competing consequences of each realistic option. The child’s enjoyment of contact and distress at its removal may be outweighed by the continuing emotional harm caused by parental conflict and the undermining of the other parent and professionals. A period of no direct contact may be ordered where lesser measures have no realistic prospect of changing the harmful dynamics. A Children Act 1989 section 91(14) order engages important access-to-court and Convention rights and requires close consideration of that interference.

The father applied for shared care of AX, aged 10, following extensive private and public law litigation. Earlier orders placed AX in his mother’s care, provided for supervised contact, imposed a prohibited steps order and made a two-year section 91(14) restriction. The father had subsequently retained AX contrary to an order, leading to his recovery by the police. Evidence showed that AX enjoyed contact with his father but that the father persistently undermined the mother and school, and lacked insight into the emotional effect on AX.

The issue was whether shared care, continuing limited direct contact, or a period without direct contact best served AX’s welfare.

1. Outcome. The application for shared care was dismissed. The supervision order was extended for 12 months, the prohibited steps order continued, and direct contact between father and child was stopped, subject to limited letterbox contact. A further two-year section 91(14) order was made.
2. The court applied the welfare checklist under section 1 of the Children Act 1989. AX’s wishes, his close relationship with his father and the likely distress caused by stopping contact were important considerations. They did not determine the outcome.
3. The decisive issue was the balance of harm. Continuing shared care or limited direct contact would leave AX exposed to parental conflict, pressure to choose sides, and continuing undermining of his mother and school. The father’s conduct was longstanding, and the court found no realistic prospect that short-term therapeutic work or a separating-parents course would produce sufficient change.
4. The court accepted that cessation of direct contact would itself cause emotional harm. It nevertheless considered that the resulting period of stability could strengthen AX’s relationship with his mother, reduce the father’s undermining influence and improve AX’s confidence at school. That balance made cessation of direct contact the least harmful realistic option.
5. When making a section 91(14) order, the court must have close regard to the fact that the order imposes a permission filter and interferes with the parent’s Article 6 and Article 8 rights. The order was nevertheless considered justified for two years, taking AX through his transition to secondary school.
6. Father’s letters were to be sent to the local authority for checking. AX could write to his father as often as he wished, with the local authority also checking those letters.

The judgment describes earlier private and public law proceedings and orders made by HHJ Jones in Coventry on 3 November 2022. Permission to appeal that order was refused by Baker LJ. The present decision was a first-instance determination of the father’s later application for shared care.