Factual and Procedural Background
This appeal arises from an order dated 15th May 2015 by His Honour Judge Harrington dismissing the father's application for contact with his two sons, referred to as "D" and "A". The boys, aged approximately fifteen and twelve, live with their mother following a separation from the father several years prior. The family has been involved in protracted court proceedings spanning over six years, primarily concerning contact arrangements between the father and the children.
In 2011, the mother was granted a residence order for both boys. Subsequent proceedings under the Children Act included the father's applications for contact and at least one non-molestation order against the father in 2012. By 2015, contact had been supervised and a court-ordered psychological assessment was conducted by Ms. Whitcombe, who reported that both boys wished to maintain contact with their father.
The psychological report recommended continued and gradually increased direct contact, supported by an independent third party. Following this, supervised contact sessions were arranged and supervised by Jo Rees-Bains, who expressed concerns about the father's conduct and recommended maintaining supervised contact unless the father addressed his behaviour.
A supplemental report by Ms. Whitcombe in May 2016 endorsed ongoing direct contact, subject to the father engaging with support to address personal difficulties. The children's guardian supported these recommendations, proposing continued supported contact.
In June 2016, the father withdrew his application for contact, citing family turmoil, resulting in no direct contact for approximately eighteen months. Indirect contact was ordered but the father alleged non-compliance by the mother. The father sought to restore contact, but did not attend a subsequent hearing, where the existing indirect contact arrangements were confirmed.
The father's renewed application was transferred to a family court in Gloucester due to the children's relocation. After procedural steps, the matter was heard by Judge Harrington on 15th May 2017, who dismissed the father's application summarily, finding no change in circumstances since the last order and concluding that the father had not made a prima facie case for varying the existing order.
The father appealed this decision, and the appeal hearing involved submissions from both parents, with the appeal judge considering the history, expert reports, and the conduct of the parties.
Legal Issues Presented
- Whether the judge erred in dismissing the father's application for contact on the basis that there had been no change in circumstances since the last order.
- Whether the judge failed to properly consider the expert reports and the welfare of the children under the statutory welfare checklist, including the presumption favouring parental involvement under section 1(2)(a) of the Children Act.
- Whether the judge failed to consider all available options and alternatives to facilitate the resumption of direct contact between the father and the children.
Arguments of the Parties
Appellant's Arguments
- The judge failed to properly consider expert reports from earlier proceedings, particularly those recommending direct contact, including the reports of Ms. Whitcombe and the children's guardian.
- The judge erred by focusing solely on whether there was a change in circumstances rather than conducting a full welfare analysis of the children.
- The judge was mistaken in concluding that there had been no change in circumstances; specifically, the family's situation had stabilized following the mother's relocation and the boys attending the same school.
- The judge failed to apply the welfare checklist and did not give proper weight to the statutory presumption that parental involvement furthers the child's welfare under section 1(2)(a) of the Children Act.
- The judge did not consider alternative methods or options to facilitate the resumption of direct contact.
Respondent's Arguments
- The mother acknowledged some family turmoil in 2016 but disputed that this was the reason for the father's withdrawal of his application.
- The father's inconsistent pursuit of contact had negatively impacted the children's emotional welfare.
- The father's withdrawal was motivated by his unwillingness to accept supervised contact.
- The children are now settled after their move and the father has not appropriately engaged with indirect contact.
- The judge's decision was consistent with the children's welfare interests.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court analysed the procedural history and expert evidence, noting that the judge had taken a summary approach focusing primarily on whether there had been a change in circumstances since the last order. The appeal court found this approach inappropriate given the unresolved issues concerning the nature and extent of direct contact, which had not been fully litigated due to the father's withdrawal of his application in 2016.
The court observed that multiple independent professionals, including the psychologist and the children's guardian, had recommended ongoing direct contact, albeit with support and supervision initially. The judge had not considered all relevant reports, including the guardian's, and had not conducted a full welfare analysis in accordance with the Children Act's statutory framework and welfare checklist.
The appeal court emphasised the statutory presumption favoring parental involvement under section 1(2)(a) of the Children Act and concluded that the judge erred in dismissing the application summarily without properly addressing these factors and the expert recommendations.
Accordingly, the court held that the decision below was flawed and could not stand.
Holding and Implications
The appeal was ALLOWED, and the order dismissing the father's application for contact was set aside.
The matter was remitted to His Honour Judge Wildblood QC, the designated family judge for Avon and Gloucester, for case management and further hearings as appropriate given the lengthy history and complexity of the case.
The court noted that while no final decisions on contact arrangements were made on appeal, it was important for the parties to consider the wishes of the children, who had expressed a desire to see their father, and that direct contact would likely be appropriate unless there were compelling reasons to the contrary. The precise terms and conditions of such contact were to be determined in subsequent proceedings.