How far does the court need to go to promote direct contact in intractable contact cases?

Private Law (Child Arrangements Programme (CAP))

09 November 2017

There has historically been a belief that direct contact between parents and children was so important that the court must do whatever it can to try and facilitate it but this is no longer the case.

In Re H-W (a child) [2017] EWCA civ 154 the Court of Appeal made it clear that the Judge does not have to pursue all and every avenue to facilitate direct contact. In line with a raft of other current case law, re H- W seeks to remind the courts that children’s welfare is the paramount consideration and protracted court proceedings can often stand against their best wishes.

In Re H-W, the Court of Appeal considered the appeal of a father against the decision that direct contact between the father and W, his nine year old son, should not take place, it not being in W’s best interests.   The court proceedings were long running and had started when W was aged one. In the intervening years various findings had been made against the father, that he had been physically abusive towards the mother and W’s older half-siblings. The court finalized proceedings with the father only receiving indirect contact.

The father appealed on the following 3 basis 1) that the court had failed to seek assistance from an expert, 2) the court had failed to consider W’s interests in the longer term when he is older and 3) the court had failed to revisit an earlier strategy for the Mother to engage in therapy and then make renewed efforts to facilitate contact.

The Court of Appeal rejected the Father’s appeal. In the Court’s view, the Judge had not been wrong to order no direct contact. The Judge had considerable experience of the case, gathered over several years; had applied the correct principles to the facts as she found them to be; and came to a decision that was open to her and “well supported” by the evidence.  In reaching her determination on this occasion, the Judge was “not only free to consider all of the circumstances as they were in May 2016, and to determine for herself what was in W’s best interests at that point, she was obliged to do so”.  She had given proper consideration to all available options, including the instruction of experts and professionals not expressly put forward by the father. The Judge had felt that continuing court proceedings went against W’s best interests and the Court of Appeal supported her right to do so.

Interestingly the Judgment took the opportunity to specifically clarify the court’s duty in relation to re-establishing contact in these cases:

“[50] Before going on to look at some of the elements of the Judge’s decision in order to see whether it could be said that despite appreciating her duty to consider way to re-establish contact, Judge Newton failed to fulfil it, I should make the following general point. If the father was going so far as to submit that the court has an obligation to try every single possibility that might, in theory, achieve direct contact, that does not accord with my understanding of the position. The obligation of the court is to make a decision about contact, with the child’s welfare as its paramount consideration (Section 1(1) Children Act 1989), and having regard in particular to the matters set out in section 1(3) of that Act. Within this framework, the task of the Judge is to weigh up the pros and cons of what might be possible ways forward, looking to see what chances they have of working, what benefits they might bring and what harm might be occasioned in the attempt. This exercise might lead to the abandonment of some options that might have looked worth pursuing. In this case, it led the Judge to discard the possibility of seeking general expert advice, over and beyond that offered by the Cafcass officer, even though this had not so far been tried and might have been the only remaining option.”

Within this paragraph, Black LJ is very clearly rejecting the suggestion that the court must follow a ‘leave no stone unturned’ approach to continuing proceedings in the hope of re-establishing direct contact despite the known benefits of children having direct contact with both their parents.

In conclusion, the Court only has to pursue direct contact for as long, or as far, as it is in the children’s welfare interests to do so. Once the proceedings themselves become harmful or potentially harmful to the children involved, the Court’s duty to the best interests of the child outstrips the requirement to promote contact. In these circumstances, it can be appropriate to end proceedings even if there are options that have not yet been pursued that could lead to successful direct contact taking place. This will more often be the case in long running cases but of course applies to all contact cases and it may also be a useful principle in shorter running cases where the children are particularly vulnerable.


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