T, Re (Interim Care Order: Arrangements for Contact)

Factual and Procedural Background

This appeal arises from a decision made by Judge Greensmith at the Family Court in Liverpool on 22 March 2024, within ongoing public law proceedings under Part IV of the Children Act 1989. The Judge made a case management order requiring the Appellant Local Authority to arrange direct face-to-face contact three times per week between the subject child, aged 3½ years, and her mother, the First Respondent. This provision was opposed by the Local Authority and the Children's Guardian. The Local Authority sought and obtained permission to appeal and a stay of the direct contact order, granted by Lord Justice Baker on 27 March 2024.

The appeal court allowed the appeal, set aside the contact-related recitals in the 22 March 2024 order, and remitted the case for urgent interim contact and case management consideration to the Designated Family Judge for Merseyside and Cheshire. The mother’s position at the appeal hearing made interim orders unnecessary at that stage.

The child has been subject to an interim care order since 27 February 2024 and is placed with her maternal great aunt. The mother is twenty years old; the father’s whereabouts are unknown and he has not participated in the proceedings. The child’s mother reported her former partner to the police on 1 January 2024, alleging sexual abuse of the child approximately twenty months earlier. Police investigations revealed potentially incriminating evidence implicating both the mother and the former partner, who were arrested and charged with related offences. The mother was initially remanded in custody and later released on bail with a condition prohibiting contact with the child except as ordered by the Family Court.

Following the child’s removal, she initially stayed with her maternal great grandmother before moving to her great aunt. The Local Authority initially arranged the placement with the mother’s agreement under section 20 CA 1989. An interim care order was made by consent on 27 February 2024. The Local Authority had not facilitated any contact between the child and mother by that date, a matter acknowledged as a shortcoming by the Local Authority’s counsel. The Judge indicated a preference for professionally supervised contact about three times per week, and the parties agreed a 'roadmap' for contact involving preparatory work, videocalls, and eventual direct contact.

Videocall contacts took place but were assessed by the Local Authority as distressing to the child, who was resistant and expressed negative sentiments about her mother. The Local Authority applied under section 34(4) CA 1989 to restrict contact, citing the child’s distress and resistance. The mother initially accepted videocall contact but later sought immediate direct contact. The Children’s Guardian supported the Local Authority’s position to limit contact to videocalls.

The Judge’s ruling on 22 March 2024 ordered direct contact twice a week, emphasizing that direct contact meant face-to-face without electronic mediation, despite the Local Authority’s concerns and application to restrict contact. The Judge adjourned the Local Authority’s section 34(4) application but invited the Local Authority to return to court if contact caused adverse trauma to the child. The order included recitals treating prior contact agreements as enforceable orders, a position later challenged on appeal.

Legal Issues Presented

1. Whether the Judge erred in failing to conduct a child-focused welfare review of contact, especially in light of the Local Authority’s application under section 34(4) CA 1989 prior to ordering direct contact.
2. Whether the Judge was correct to elevate the recital in the 27 February 2024 order to the status of an enforceable court order and treat contact as an enforcement issue rather than a welfare issue.
3. Whether the Judge erred in dismissing or failing to properly consider the child’s distress and the grave allegations of abuse when ordering direct contact.

Arguments of the Parties

Appellant's Arguments (Local Authority)

• The Judge failed to undertake a proper welfare assessment before ordering direct contact and wrongly adjourned the section 34(4) application without considering it on its merits.
• The Judge incorrectly treated the recital in the 27 February 2024 order as an enforceable order and viewed contact as a matter of enforcement rather than welfare.
• The Judge disregarded the child’s distress and did not allow for further investigation into the reasons for her resistance to contact, undermining the Local Authority’s plan to explore the child’s feelings.

Respondent's Arguments (Mother)

• Initially, the mother supported the Judge’s enforcement of the contact agreement but later accepted that the recital was not enforceable as an order.
• The mother acknowledged changed circumstances after the agreement and that she could have applied for defined contact under section 34(3) CA 1989 but did not do so.
• At the appeal hearing, the mother accepted videocall contact should continue temporarily but wishes for planning of direct contact.
• Accepted the Judge was confused about the section 34(4) application and that the welfare evaluation was brief.

Respondent's Arguments (Children's Guardian)

• Supported the Local Authority’s appeal, arguing the Judge erred in treating the recital as an enforceable order.
• Contended that compelling direct contact against unanimous professional opposition without oral evidence or full argument was wrong.
• Highlighted the absence of any welfare checklist consideration in the Judge’s ruling and that the decision was contaminated by a focus on enforcement rather than welfare.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognised the inherent difficulty in making interim contact decisions where evidence is incomplete and the child’s welfare is paramount. It noted that the Judge was concerned about the Local Authority’s initial failure to facilitate contact but wrongly treated the Local Authority’s deviation from the agreed 'roadmap' as non-compliance warranting enforcement rather than reassessment of the child’s welfare needs.

The Judge’s ruling was found fundamentally flawed for several reasons. First, the Judge mistakenly believed no application under section 34(4) CA 1989 had been made, despite the existence of a supporting social worker’s statement. Second, the Judge failed to acknowledge the significant change in the child’s circumstances following distressing contact sessions. Third, the ruling was contradictory in its treatment of the child’s distress, simultaneously questioning and acknowledging it, but ultimately ordering direct contact without adequate consideration of emotional harm risks.

The Judge did not undertake a reasoned welfare analysis, neglecting statutory welfare checklist factors such as emotional needs, background circumstances including abuse allegations, and parental capability. The ruling showed a misplaced focus on enforcement of the contact arrangement rather than the child’s best interests. The Judge also failed to appreciate that the Local Authority’s application under section 34(4) was premised on the child’s distress and resistance, which should have informed a cautious approach to direct contact.

The court further criticised the Judge’s treatment of recitals in case management orders as enforceable orders, noting the practice direction and House Rules caution against such usage. The orders were described as unwieldy and containing excessive recitals, contrary to guidance on drafting orders in children cases.

Ultimately, the court concluded that the Judge’s direction for direct contact was premature and unsustainable in the circumstances.

Holding and Implications

The appeal court ALLOWED the appeal.

The contact-related recitals in the 22 March 2024 order were set aside, and the case was remitted for urgent interim contact and case management consideration to the Designated Family Judge for Merseyside and Cheshire. No interim orders for contact were made by the appeal court given the mother’s position at the appeal hearing.

The decision directly affects the parties by overturning the order for direct contact and requiring reassessment of contact arrangements with a proper focus on the child’s welfare. The court did not establish new precedent but reaffirmed the importance of careful welfare analysis in contact decisions, especially when allegations of abuse and child resistance are present. It also clarified the non-enforceability of recitals in case management orders as standalone orders.