Neutral Citation Number:  EWCA Civ 1664
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE POWLES QC)
Royal Courts of Justice
3 December 2014
B e f o r e :
LORD JUSTICE CHRISTOPER CLARKE
LORD JUSTICE PATTEN
LADY JUSTICE MACUR
IN THE MATTER OF R (A CHILD)
DAR Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court)
The Appellant appeared in person
Mrs A Small (instructed by Direct Access) appeared on behalf of the Respondent
LORD JUSTICE CHRISTOPHER CLARKE:
The order provided that R might make such contact with her father as she considered appropriate, and required the mother to support and assist the child should she wish to make contact with her father. It also contained provision for the sending of school reports and photographs each year and keeping the father informed if R was seriously ill and informing the father of her address.
"6. R said the only thing to cause her unhappiness and uncertainty in her life has been the indirect contact from her father during the past 12 months. She was very clear that it has caused her to feel unsettled and worried, and she said she is certain that she does not want to see her father or to continue the indirect contact. She told me several times that she had not been influenced by her mother, who continually tells her that she will support her decision, and that if she is happy to see her father, she must feel free to do so.
7. ... I had no sense that she had been coached or influenced by the mother in any way.
9. R responded to the question ´What makes me feel safe?´: ´Being with mum, who would never hurt me and always wants the best for me´. She replied that she feels unsafe when she thinks about her dad.
11. To the question ´What makes me sad?´ she replied ´When I get letters from my dad and when I have to talk about him´. She feels bad when she ´thinks about dad´ and what might happen and worries that he might take her away from her mummy.
14. She said of course she would have wanted a father who loved her and lived with her and cared for her when she was growing up, but that was not possible and too much time has gone by and he has another family. Nevertheless, she said cannot see how seeing him would not turn her life upside down."
Ms Corrigan reported that R was adamant that she did not wish to have contact with her father, and that she was saddened to see her obvious discomfort when talking about him.
" ... that if only she could take a few initial steps towards a meeting, that would bring her the reassurance that she craves, would dispel worries and concerns and everything would be fine."
- That, however, as he said, involved a risk, and the safe course was to follow the recommendation and to accept, as he did, the mother´s assurance that she would support R in contact. He said that he would like her to do more by way of positively encouraging contact, rather than it being something R could take or leave as her choice. He thought it would help R if a residence order was made, because that would show that she was going to remain with her mother, and she should continue to know that her father remained interested in her, and that the father be kept informed about her so that he retained an interest in her. Accordingly, he made the orders to which I have referred.
- The applicable legal principles are clear. First, the welfare of R is the paramount consideration for the court. It takes precedence over any other. Second, the court has in a series of cases stressed the importance of contact between parent and child as a fundamental element of family life, which is almost always in the interests of the child, and which is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only where it would be detrimental to the child´s welfare. The judge has a duty to promote such contact and to grapple with all available alternatives before abandoning hope of achieving some contact. Contact should be stopped only as a last resort and once it has become clear that the child will not benefit from continuing the attempt. The court should take a medium to long term view and not accord excessive weight to what appear likely to be short term and transient problems. The key question is whether the judge has taken all necessary steps to facilitate contact, as can reasonably be demanded in the circumstances of the particular case; Re C (a Child)  EWCA Civ 521.
- These principles reflect the jurisprudence of the Strasbourg court, which in many cases has emphasised the fundamental right of parents to have measures taken with a view to their being reunited with their children, and the obligation of national courts to take such measures. That obligation is not however absolute. The best interests of the child may be threatened by contact with the parent, and the rights of the non‐resident father have to be weighed against the child´s rights under Article 8, in which case it is for the national court to strike a fair balance between the respective rights.
- The effect of the judge´s order is to preclude all contact between father and daughter, even indirect, unless R should choose otherwise. It contains no provision which might encourage or facilitate contact in the absence of R making that choice. Such an order is rightly described as Draconian.
- The matters which appear to me to be of particular significance in the present case are the following: first, the period in which the father had had direct contact with R was whilst she was very young and was itself very limited, lasting from her birth until at the latest September 2005, when she was 3 and a half. Second, the interval between contact ceasing and indirect contact restarting has been very long, from September 2005 to August 2012, some seven years. Third, the indirect contact which then took place has not been productive. The position now is that the father has not seen R for over nine years. Further, the judge has found that R´s reaction was not something which her mother had coached her to have, although she may well have picked up her mother´s negative feeling. Fourth, R, who was described by Ms Corrigan as an intelligent and competent 11 year‐old, is of an age where her views require consideration.
- There are, however, countervailing considerations. First, this is not a case where R has been maltreated by her father, whom the judge has found to be a decent man. Second, the apprehensions and fears expressed by R are not based on any particular incident or any experience of actual contact. They are the understandable feelings of a girl who has not seen her father and has lived with her mother for years. It may be, as the judge recognised in terms, that if contact was resumed gradually these fears and apprehensions would dissipate. Thirdly, no real investigation has taken place of what steps could realistically be taken to promote or encourage direct contact between father and daughter. That may involve careful preparation of both her and her father, supervision of any contact, and other professional assistance. Lastly, whilst initiation of contact in present circumstances inevitably involves a risk, it may not be without reward. The risk is relatively short term. If contact cannot work, some harm may have been done to R in the attempt. If contact could have been made to work but is never tried, the long term harm of her having lost all contact with her father may be irremediable.
- In short, it does not seem to me that the judge has grappled with available alternatives, particularly when he did not have before him any evidence of the steps that could or might be taken to promote contact. It does not seem to me that the court was driven to conclude that the child would not benefit from continuing the attempt at contact, or that it had reached the position of last resort, or that there was no alternative other than the making of the order that was made.
- Accordingly, I would allow the appeal and set aside the order for no contact. I would direct that the father´s application for direct contact should be remitted to His Honour Judge Powles QC and that the case be listed before the judge for a case management hearing before 22 December 2014 for directions as to the filing of evidence relating to local services, support and assistance which may be deployed, and the facilities available, to enable the reintroduction of the child to the father in direct supervised contact on up to three occasions, and thereafter reports of such meetings to be filed. The purpose of taking this course is to ensure that the court takes every step that can reasonably be demanded to facilitate contact in fulfillment of its duty to promote that if it can.
LADY JUSTICE MACUR:
- I agree.
LORD JUSTICE PATTEN:
- I also agree.
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