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Re G (A Child) [2006] EWCA Civ 745

Permission for father to appeal against contact order refused, but appeal against parental responsibility order allowed.

Court of Appeal: Thorpe and Moses LJJ and Hedley J (17 May 2006)

Permission for father to appeal against contact order refused, but appeal against parental responsibility order allowed.

This case concerned a child conceived on a 'one night stand' and born in March 1999; there was never a relationship between the father and the mother. The child had grown up, for at least the previous four years, with the mother and stepfather, and the mother was deeply opposed to contact, but the father had shown great determination in trying to form a relationship with the child.

In February 2003, a contact order was made in favour of the father and, by February 2005, the child was having contact twice a month with his father, and he had at least the intellectual knowledge that the person he was meeting was his father.

At the hearing in December 2005, the judge made a residence order in favour of the mother, and granted contact to the father twice a year on a direct basis and twice a year on an indirect basis. He also granted the father parental responsibility under section 4 of the Children Act 1989, but suspended its operation on certain terms as to the mother providing information to the father regarding education, health and whereabouts.

The father applied for permission to appeal, with appeal to follow if granted.

Held, (1) refusing permission to appeal against the contact order, that it was impossible to say that the judge was plainly wrong in the decision that he reached; and (2) granting permission to appeal against the parental responsibility order and setting the order aside, that such an order was not susceptible of suspension under section 4.

In relation to contact, the court recognised that the judge had been confronted with two extreme positions: a demonstration by the father of genuine attachment to the child on the one hand, and the opposition of the mother and stepfather to contact on the other. The judge had weighed carefully all the relevant factors, and had the advantage of combined expert and professional evidence concerning the appropriate level of direct and indirect contact to achieve the best outcome in this case, which was to build contact that would keep the child aware of his origins, of his father and his concern for him. In the event, the judge was never going to find a solution that was acceptable to everyone, and it could not be said that he was wrong in concluding as he did.

On the parental responsibility issue, the court stated that an order could not be suspended under section 4, although such a result could no doubt be achieved by a raft of specific issue orders. The court considered this to have been an unusual course of action by the judge and, in setting the order aside, substituted for it an order adjourning the father's application for parental responsibility, with liberty to restore on the mother's undertakings set out in the judge's order. Thus, if the undertakings were not complied with, or if circumstances changed (eg by the making of an adoption application), the father could restore the application.

Accordingly, the application was granted to the extent of setting aside the judge's order so far as it dealt with parental responsibility, and substituting the order described above.