recent case law from the court of appeal

C (A Child) [2011] EWCA Civ 261

Court of Appeal: the Court should ensure that all avenues have been exhausted before concluding that contact should be terminated. In difficult cases the attendance of the CAFCASS officer may be required even if it leads to an adjournment; it may be helpful for the child to be separately represented.

 The Court of Appeal considered an appeal by the father of a 12 year old girl, P, against an order made by HHJ Richards terminating the father's contact with his daughter. 

The matter had been before the court on a number of occasions since the parents had separated in 2001.  In October 2006 the mother was granted residence with staying contact to the father.  In October 2009 the mother applied to vary the contact order on the basis the P did not want contact to continue.

HHJ Richards heard evidence from the parents and from the father's wife.  He read a report from a CAFCASS officer but she was not called to give evidence.  She advised that the court might wish to consider suspending contact as an interim measure.

The CAFCASS officer had interviewed P on three occasions.  The picture P conveyed was that she attended contact because the court told her she had to.  P gave examples of issues arising during contact that made her unhappy and anxious.  These included derogatory comments about her mother.  The CAFCASS officer had also read a psychologist's report from 2006.  The psychologist believed that P had a strong bond with both her parents but was concealing her feelings about her father to prevent her mother being hurt by the fact she might like time with her father. 

The CAFCASS officer concluded that P's feelings about her relationship with her father had deteriorated since the 2006 report and, from P's description, it did not appear that contact was meeting her emotional needs. 

HHJ Richards concluded that P had put an end to the battling and conflict of her parents by rejecting one of them, her father.  He discharged the order of October 2006 and made no order for contact.

Lady Justice Black referred to his judgment.  She considered that it had been the product of anxious deliberation, expressing the dilemma of the case and many others like it.  There was no right answer and the judge was left looking at the least worst option for P.  He had approached the decision with P's welfare in mind and had summed up the various factors.  He had considered whether to order further enquiries or investigations but concluded that P would be resistant and that this would prolong the litigation and be intrusive.  He balanced that against the likely outcome which would not be a change of heart by P.

Lady Justice Black had considerable sympathy for his view that "there are some exceptional cases in which the Court can simply do no more.  Every avenue has been tried and exhausted." The question was whether he was entitled to conclude that that point had been reached in P's life.  Had the evidence as to her emotional position and her feelings been fully evaluated and had all possible avenues been exhausted?

Although expressing sympathy for the judge's decision not to require the CAFCASS officer's attendance, which would have lead to an inevitable adjournment, Lady Justice Black believed that her attendance was necessary. 

Firstly the CAFCASS officer had recommended a suspension of contact, albeit temporarily, which was by no means the only possible recommendation.  Such an order was draconian and one which the father was entitled to explore with her, particularly in view of the judge's finding that P was likely to resume contact behind her mother's back. 

Secondly the CAFCASS officer needed to consider emails passing between P and her father and his wife at the same time as she was carrying out her interviews.  She either did not see them or did not consider them important enough to include reference to them in her report.  They showed a different picture from the one that P portrayed to the CAFCASS officer and required consideration both in relation to what they may reveal about P's feelings and how matters should be handled in the future.  Lady Justice Black considered that this was gap in the CAFCASS report which may have been remedied if she had given evidence. 

Lady Justice Black also considered that P should be joined as a party with a guardian and a solicitor so that her position could be put independently of her parents.  She expressed the view that this was often quite helpful in very difficult cases such as this one. The CAFCASS officer might still be required or alternatively her role might be subsumed by the guardian.

The case was returned to HHJ Richards.