England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(LADY JUSTICE BUTLER-SLOSS (THE PRESIDENT OF THE FAMILY DIVISION))

		Royal Courts of Justice Strand London WC2A 2LL Friday 18 May 2001

1. LORD JUSTICE THORPE: This is renewed application for permission, which has been most ably argued by Mr Krolick for the applicant father. He has picked out of the judgment of the President, both skillfully and fairly, the passages which demonstrate the process of reason by which she refused to order any direct contact between the applicant father and his daughter.
2. Mr Krolick's submits that the President erred in principle in refusing the possibility of professionally supervised contact between the father and his daughter on the unfounded basis that it was wrong in principle, alternatively impractical, to set up such a regime for more than a short period defined by the President as three to six months. Mr Krolick rightly draws attention to a passage in the judgment of Wall J in the case of Re DH [1994] 1 FLR 679 at 703, where the judge said that whilst he agreed with an earlier judgment of Booth J:

"....that, as a matter of general principle, supervision of contact over a lengthy period of time is undesirable, the facts of children's cases are ever variable and there are cases, of which this is one, in which supervised contact over a lengthy period, with a review by the court in one year's time, is appropriate."

3. There would be force in Mr Krolick's submission if this were the true and only ratio of the President's decision. But I think it is plain that her appraisal has a much wider foundation. I would stress the careful route by which she approached the decision. First, I emphasise that at page 14 of her judgment she said:

"I find this an extremely difficult decision to come to and I have taken several days to make up my mind."

4. Then she continued:

"I propose to set out the competing factors which are relevant to my decision."

5. She started with two questions: (a) is there a real risk of future abduction; and (b) is the father's abandonment of a residence application a genuine recognition or a manipulative first step to renewing a relationship with the child with the intention of making a residence application in the near future?
6. Having reviewed the two issues the President decided each against the father, namely that there was a real risk of future abduction and that the abandonment of the residence application was not a genuine recognition but a strategic ploy.
7. However that was by no means the end of her reasoning, because she went on to review all three family members in terms of their needs and what they had to offer. She noted the many relevant factors that went in the father's favour. She noted the relevant factors that went against the father. She then turned to the mother. She reviewed the mother's quality as a parent. She then turned to consider the child's needs and the vulnerabilities from which she had to be protected. The President had regard to the fact that under European case law, where the rights of individual family members conflict, the rights of the child must be given priority. She considered the welfare check list.
8. The President then revealed how she had considered whether she could secure for H the benefits of direct relationship with the father without exposing her to risk of harm. There was not just the risk of abduction, but the risk that the father would abuse contact meetings to denigrate the mother. She said at page 27 of the judgment that she had discussed with counsel the possibility of supervised contact in a centre such as the Coram Centre for several months followed by a further review and report from Dr Claire Sturge. The President rejected that option as being simply a postponement of the decision that had to be taken. She concluded that:

" I have come to the conclusion with some regret that the harm the child would suffer from not seeing her father will be significantly outweighed by the risk of real harm she may suffer if any contact beyond short term closely supervised contact is put in place."

9. So the summary of the last 12 pages of this judgment demonstrate to me the great care with which the President approached her task and how narrow was the choice for her between the finely balanced alternative of calling a halt, not reintroducing direct contact, and seeking to renew the relationship, restore the relationship, enlarge the relationship under close professional supervision. Obviously it was an enormously difficult decision; obviously another judge might have taken a different approach. But it would be impossible to think of a tribunal of first instance of greater experience in this field than the President. I cannot accept the submission that she misdirected herself in law in her analysis.
10. For those reasons, I do not consider that an appeal would have a sufficiently realistic prospect of success. Despite the extremely persuasive presentation that Mr Krolick has mounted before me, I remain of the view that the application for permission must fail.
Order: Application refused. (Order does not form part of approved Judgment)