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Re K (Children) [2005] EWCA Civ 1691

Father’s application for permission to appeal against order for no direct contact dismissed.

Court of Appeal: Sir Mark Potter P, Wall LJ and Sir Paul Kennedy (29 November 2005)

Father's application for permission to appeal against order for no direct contact dismissed.

This was a father's application for permission to appeal against an order by which his application for a residence order in respect of his two children was dismissed, and which stated that he should have no direct contact until further order. The father, an asylum seeker from Iran, and the mother formed a relationship in 1993, and they had two children, born in December 1994 and March 1997 respectively. The parties separated in April 1998, and the mother married a man, by whom she had one child, and she had two further children by her current partner.

In December 1998, the father removed the younger child to Iran without the mother's consent; the child was returned to the UK in February 1999, and had lived with the mother ever since. In March 2000, the father applied for contact and parental responsibility in respect of both children, and added a residence application in May 2000.

Over the intervening years, numerous attempts were made to establish contact between the children and their father, several agencies were involved in measures to facilitate such contact, and in the region of 40 hearings had taken place. At the final hearing in May 2005, the judge referred, amongst other factors, to the mother's fear that the father might abduct the children, and her opposition to direct contact with the father was clearly known to the children. Treating the welfare of the children as the paramount consideration, the judge dismissed the father's residence application, on the ground that no professional supported such a course; and ordered that, given the complex history of this case, there should be no direct contact, albeit recognising the desirability that children should, in normal circumstances, have contact with the absent parent. Further, the judge made it clear that her decision and order did not preclude indirect contact; and the children would, in the not too distant future, be able to make their own views known as to contact.

The father appealed against the order for no direct contact.

Held, dismissing the application for permission to appeal, that there was ample evidence before the judge on which she was entitled to come to the conclusion that she did. That conclusion had all the more force since it came from a judge who over the years had done everything in her power in a fruitless effort to make the mother co-operate and encourage contact. Accordingly, the father had failed to show any arguable ground on which the court should interfere with the judgment of the judge.

Wall LJ observed that the court had used every possible resource available to it over the years: reports from CAFCASS; were separate representation for the children; consideration of care proceedings with Section 37 orders; family assistance orders; and, on one occasion, the judge had committed the mother to prison. However, none of this had achieved satisfactory contact and the delays had undoubtedly been substantial. He stated that, if the provisions of the Children and Adoption Bill 2004 were brought into force and if the courts were given wider and more flexible powers, these would assist fathers in such a position as in this case to achieve a successful result.