LAW REPORT 25 June 1997 : No error in dismissal of father's contact application

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The Independent Online
Re B (a minor) (Contact: stepfather's hostility); Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Millett and Lord Justice Ward) 11 June 1997

A judge was entitled to dismiss a father's contact application at a directions hearing at which the father was not present, following threats by the child's stepfather that if the proceedings continued he would reject the child and the mother.

The Court of Appeal dismissed the father's appeal against an order dismissing his application for contact with the child.

The child's parents were Sikhs. Their marriage broke up shortly after the child's birth in 1988. The mother remarried. In 1993 the father made an application for contact with the child. The stepfather made a statement in which he set out his strong opposition to contact, based on his concern for the child's happiness and stability. He said that it was common in the Asian community that following a divorce the children of the family did not have contact with the other party. If a contact order were made the child would no longer be able to reside with him and the mother, and would be handed over to the father. On the hearing of the application it was agreed that there should be no order, on certain undertakings by the mother and stepfather.

The father made a second application in 1996. At a directions hearing which the father did not attend but at which he was represented, the stepfather indicated that if the proceedings continued he would reject not only the child but the mother as well. An order was made dismissing the application.

John Mitchell (Challinors Lyon Clark, West Bromwich) for the father; Anna Pauffley QC for the Official Solicitor.

Lord Woolf MR handed down the reserved judgement of the court. The short question for consideration on the appeal was whether the judge had been justified in summarily dismissing the father's application for contact when the matter had been listed for directions, no notice of a possible application to dismiss had been given, the father was not present, and the sole ground for the decision was the attitude struck by the stepfather, the justification for which had not been tested in cross-examination.

To deprive a father who bona fide wished to have contact with his child of that contact was a drastic step. The court's general policy was clear: contact between a child and its natural parent was something which should be maintained wherever practical.

The court's general attitude to threats was equally clear. The paramount consideration was the welfare of the child, and the court was only concerned with the interests of the mother and father insofar as they had bearing on the welfare of the child. The court should not hesitate to enforce orders for contact where it judged that it would, overall, promote the welfare of the child to do so. Cases did, unhappily, arise in which the court was compelled to conclude that that an order for immediate direct contact should not be made because it would injure the welfare of the child, but in such cases it was highly desirable that there should be indirect contact.

In an appropriate case, the court had the power to dismiss an application for contact on a directions hearing, but it must bear in mind that the more draconian the order and the more unique the situation, the greater was the need for the court to be satisfied that grave harm was virtually certain to befall the child if the court followed its usual procedure and investigated the matter on its merits.

The judge had fully appreciated that. He had regarded the case as being exceptional and one where in the interest of the child he should deal with the matter summarily. He had concluded that there was a real risk that the child would be in danger of being damaged by being removed from what was a stable and satisfactory home.

The judge could not be criticised for coming to that conclusion. He had been placed on the horns of a fearful dilemma to which, in truth, there was no right answer. He had not erred in principle, and it was impossible to conclude that his decision was outside the generous ambit within which reasonable disagreement was possible.