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H (Children) [2010] EWCA Civ 1200

Court of Appeal allowed the appeal against dismissal of indirect contact application (supported by favourable CAFCASS report), principally because the judge had attached insufficient weight to the children’s rights to a wider family life

The children's sister made an application for indirect contact and a CAFCASS report was produced that was positive to the extent that indirect contact should be started and facilitated by the CAFCASS officer over a six month period with a letter to the children every three weeks.  The officer attended the hearing.

The respondent was the children's father and he was concerned that the application was a "backdoor" attempt to allow the children's mother (who had fallen out of their lives some time ago) to be reintroduced to the children.

The judge (despite appreciating the CAFCASS officer's report and hearing her oral evidence) dismissed the application.  The Court of Appeal held that the judge had attached insufficient weight to the rights of the children to a wider family life, including the applicant, if the processes of cautious experimentation succeeded.

The appeal was principally allowed on the ground that the judge fell into fundamental error in elevating the father's anxiety above the importance of the potential gain for the children.   In addition it was held that his reasons for departing appeared somewhat scant.

Thorpe LJ stated: "I simply hold a fundamentally different position to the judge on the essential balance between advantage to the children and risk of harm to the children.  It seems to me that was the essential question.  It seems to me that the balance comes down firmly in favour of a positive approach, since the potential benefit to the children is real.  I do not believe that the risk to the children is of anything like the same magnitude, given all the safeguards that are written into this limited experiment." 

Permission to appeal and the appeal allowed.

Summary by Richard Tambling, barrister, 1 Garden Court
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Case No: B4/2010/1099
Neutral Citation Number: [2010] EWCA Civ 1200
IN THE COURT OF APPEAL  (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE, FAMILY DIVISION
SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE BULLIMORE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 22nd September 2010

Before:
LORD JUSTICE THORPE
and
LADY JUSTICE SMITH
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IN THE MATTER OF H (Children)

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(DAR Transcript of
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Ms Jessica Pemberton (instructed by Sitters and Co) appeared on behalf of the Applicant.

The Respondent father appeared in person.

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Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:  
1. In the Sheffield County Court R applied for an indirect contact order in relation to her half brother and her half sister.  She had leave to make that application and it came before His Honour Judge Bullimore for decision on 8 March of this year.

2. The decision that he had to take was the subject of Cafcass reports, the first one of December 2009 and the second of 5 March 2010.  Unfortunately, the officer, Mrs F, had been unwell and had had a bereavement so the first report was signed by her manager, but the second she was able to sign herself and she was able to give oral evidence to the judge at the hearing.

3. The parties to the application were H, who is the father of these two children and has been their sole carer aided by his partner, Ms D, for some time.  The other respondent, Z, is the mother of the children, but she had dropped out of their lives sometime ago.  R is her daughter and one of H's fears in evaluating this application was that R would effectively reintroduce Z into the lives of these two children.

4. Mrs F's reports were positive on a limited scale.  She believed that it was important that these children should come to know about their background, heritage and family relationships and she believed that it would be possible to enlarge their understanding by a series of communications from R to her which she could pass on to the children and see where the children stood at the end of a six month period. The frequency that she proposed through that six month was a letter every three weeks.  In her oral evidence, she spoke positively of her proposal and of its prospects and her evidence was little challenged.

5. H was in person before the judge, as he is before us today, since he falls into a category of persons not eligible for public funding on means test but not in a sufficient circumstance to privately instruct lawyers.  So he put his case to the judge below as he has put it to us this morning.  He is undoubtedly a very sincere father with the interests of these children very much at heart and he puts his points to the court with clarity and with effect.  That no doubt swayed the judge to reject the application and the programme recommended by the Cafcass officer.

6. Ms Pemberton, who appeared below, was complemented by the judge for her advocacy, but that availed nothing.  She has masterminded the application to this court, which was considered on paper by Munby LJ and adjourned into court for this hearing.  She has this morning emphasised that the judge was in error in departing from the clear recommendations of the Cafcass officer without sufficient reasoning.

7. I am in no doubt that Ms Pemberton is entitled to her permission and further that she is entitled to succeed on this appeal.  With all due respect to Judge Bullimore, I conclude that he insufficiently weighed the right of these children to a wider family life, including R, if the processes of cautious experimentation succeed.  I would allow the appeal principally on the ground that the judge fell into fundamental error in elevating the father's anxiety above the importance of the potential gain for these children.  The judge's appreciation of the welfare officer's recommendations is impeccable, as we see from the judgment, but his reasons for departing do appear somewhat scant.

8. I simply hold a fundamentally different position to the judge on the essential balance between advantage to the children and risk of harm to the children.  It seems to me that was the essential question.  It seems to me that the balance comes down firmly in favour of a positive approach, since the potential benefit to the children is real.  I do not believe that the risk to the children is of anything like the same magnitude, given all the safeguards that are written into this limited experiment. 

9. So for those reasons I would grant permission, I would allow the appeal and I would make an order for indirect contact for six months, all to be managed by the Cafcass officer, Mrs F.  Given the father's concerns and his earlier approach, I would take a simple frequency of one communication a month for that six month period.  That is the order I would propose.

Lady Justice Smith:
10. I agree in all respects.

Order: Application granted