COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Middlesborough County Court
(Mr Recorder Bullock
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE CARNWATH
| Re S (A child)
Mr G. Ford (instructed by Freers) for the Respondent
Hearing dates : 4th December 2003
Crown Copyright ©
Dame Elizabeth Butler-Sloss P. :
"(1) When a court determines any question with respect to -
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it,
the 'child's welfare shall be the court's paramount consideration."
"The Court reiterates that in judicial decisions where the rights under art 8 of parents and those of a child are at stake, the child's rights must be the "paramount" consideration. If any balancing of interests is necessary, the interests of the child must prevail (see Elsholz v Germany  ECHR 25735/94 at para 52 and TP and KM v UK  ECHR 28945/95 at para 72).
"how capable each of his parents, and any other relevant person in relation to whom the court considers the question to be relevant, is of meeting his needs."
"a contact order" means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
"a residence order" means an order settling the arrangements to be made as to the person with whom a child is to live;"
"both mothers and both fathers have equal rights before the court."
"It is the general proposition, underpinned undoubtedly by the Children Act 1989- and indeed the father has correctly reminded us of the importance of continuing relationships between children and their parents- that it is in the interests of a child to retain contact with the parent with whom the child does not reside. The courts generally set their face against depriving a child of such contact and urge reluctant care-taking parents to make contact work, however difficult it may be for that parent who very often does not understand the importance of that continuing contact."
"it is almost always in the interest of the child that he or she should have contact with the other parent. The reason for this scarcely needs spelling out. It is, of course, that the separation of parents involves a loss to the child, and it is desirable that that loss should so far as possible be made good by contact with the non-custodial parent, that is the parent in whose day to day care the child is not."
"Where parents do not live together, the court recognises the importance of the particular bond which exists in most cases between a child and the parent with the principal care of the child ..It does not give that parent greater rights. It does mean that the court will take care to safeguard and preserve that bond in the best interests of the child."
"(3) The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The court's task, imposed by Parliament in section 1 of the Children Act 1989 in every case is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of every child to the best of its ability.
(4) Unless there are cogent reasons against it, the children of separated parents are entitled to know and to have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative."
"Neither parent should be encouraged or permitted to think that the more intransigent, the more unreasonable, the more obdurate and the more uncooperative they are, the more likely they are to get their own way."
"The court system for dealing with contact disputes has serious faults, which were identified and addressed in Chapter 10 of the Report of the Children Act Sub-Committee(CASC) of the Lord Chancellor's Advisory Board entitled Making Contact Work. In particular, the court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial. It tends to entrench parental attitudes rather than encouraging them to change. It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders."
"Fortunately, most separating parents are able to negotiate contact without the need to go to court. Contact disputes are best resolved outside the court system. Making Contact Work identified a number of ways in which this could be achieved.
(10) Contact in my experience works best when parents respect each other and are able to co-operate; where the children's loyalties are not torn, and where they can move between their parents without tension, unhappiness or fear of offending one parent or the other."
" as regards the section 91(14) order, I have recorded, and will record again, that this application is not brought frivolously, it is not brought in any vexatious manner at all, but there has to be some breathing space for everyone and I am simply going to say that no further application be made for a period of one year from this date, without the leave of the court."
"It is a discretionary power to be used in the best interests of the child concerned. It is a draconian order to be used with great care and sparingly. Its use must be proportionate to the harm it is intended to avoid."
"the court will need to be satisfied first, that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly, that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain."