ON APPEAL FROM BROMLEY COUNTY COURT
HER HONOUR J ATKINSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
MR JUSTICE MCFARLANE
| In the matter of K (Children)
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Ms Gemma Taylor, Mr Mark Love and Mr Mark Twomey (instructed by LB Bromley) appeared on behalf of the Respondents.
Crown Copyright ©
Mr Justice McFarlane:
"There be no direct contact between the father [and he is named] and the three children."
"47. I do not propose to add to the jurisprudence or to attempt to state in my own words what has already been so clearly said by others. All I need do is to extract from the case-law to which I have referred the propositions upon which Mr Scott-Manderson places particular reliance:
• Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
• Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.
• There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
• The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
• The key question, which requires "stricter scrutiny", is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
• All that said, at the end of the day the welfare of the child is paramount; 'the child's interest must have precedence over any other consideration'."
"I start from the premise that contact is in the best interests of the child and I should consider contact unless there are compelling reasons why there should be none; in the first place children have the right to a relationship with each of their parents; it is in their interests they should do so. As I have already observed however, because of the risks identified this father is not in a position to offer care for these children neither is he in a position to be able to have unfettered, unregulated and unsupervised face-to-face contact with them."
The judge then goes on to look at the factors in the case.
"I wondered whether I would be helped by further evidence from a child and adolescent psychiatrist and as a fall back position I was encouraged in that by the father, but on balance and on the advice of the guardian I have decided that I would not. As she rightly says, what could a child and adolescent psychiatrist tell me that I do not already know? It is right that he or she might be able to offer me his/her predictions about what might happen, but they would be no more than predictions. It is right that he or she might be able to tell me about experiences that he or she had had which would influence no doubt his/her views about the balancing exercise but at the end of the day it is I who have to carry out the balancing exercise, but at the end of the day it is I who have to carry out the balancing exercise and not the child and adolescent psychiatrist. What he could do is advise me on the theory and carry out what would be really no more than a paper exercise. The guardian is right: I have deal with the 'here and now' and what I know here and what I know now about these children."
So the judge did not adjourn the case to receive that expert advice and proceeded to conduct her own valuation.
"Accordingly, I accept that there may be problems for them in the future in not having face to face contact with their father, but a great deal of emphasis has also been placed upon the necessity to ensure the children's security with their mother and not to upset their present state of calm. There has been evidence that [N] in particular was affected by his last contact; no-one can suggest that he was so affected because he did not enjoy the experience because he clearly did; but the point is that he is confused about the experience and what it means about his future with his father and in relation to his father and that has a knock on effect on his day to day functioning it is argued. I accept that to be the case."
"71. I start from the premise that contact is in the best interests of the child and I should consider contact unless there are compelling reasons why there should be none; in the first place children have the right to a relationship with each of their parents; it is in their interests they should do so. As I have already observed however, because of the risks identified this father is not in a position to offer care for these children neither is he in a position to be able to have unfettered, unregulated and unsupervised face-to-face contact with them. That situation is unlikely to change in the foreseeable future and indeed it will not change until this father does something to demonstrate that he has changed; even then I am bound to say unsupervised and unregulated contact may not necessarily follow.
72. That being the case, it would contrary to the interests of these children for them to have contact with him at a frequency which is suggestive of him being involved more extensively in their day-to-day lives. It would be against their interests to see him once a week or once a month because that level of contact would be suggestive of developments in his contact with them which would not necessarily be forthcoming. It would be confusing for them. That level of contact would, on the facts of this case and absent any explanation as to why he has had to leave them, certainly lead to a desire that he should be back home with them and questions as to why he is not. That is not going to happen and so to put them into a situation in which they might believe that it might be what would happen would be emotionally harmful to them. Accordingly I agree with the guardian and conclude that there is no base here for so-called relationship contact -- that is contact which maintains in order the relationship that they have had with their father when he was a part of their household."
"I am narrowly persuaded that the risk of future harm may not outweigh the benefits of present contact especially for the eldest boy. The appellant must appreciate that the finer the balance the harder it is to show that the judge exceeded the generous ambit within which there is room for disagreement."
Lord Justice Mummery:
Lord Justice Lloyd:
Order: Appeal dismissed