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B (A Child) [2006] EWCA Civ 716

Father’s appeal against order refusing permission to disclose papers in contact case to NYAS is allowed.

Court of Appeal: Wall LJ, Maurice Kay (26 April 2006)

Summary
Father's appeal against order refusing permission to disclose papers in contact case to NYAS is allowed.

Background
Wall LJ described this case, as heard by HHJ Barratt QC sitting in the Chichester County Court, as a 'classic intractable contact case'. The proceedings concerned S, aged 12 who was one of 5 children born to the mother. There had been no real period of family life with S's father. The 2 eldest children had a clear unhappy recollection of S's father which had been communicated to S. Whilst the father had not seen S since August 1997, an order for indirect contact had been made in the form of cards, photographs and videos which had been complied with. However a section 91(14) order was made for a term of 2 years. The present round of litigation began following the expiration of the section 91(14) period. Cafcass reported that there had been a glimmer for a moment that S might be interested in meeting her father. After further consideration S communicated she did not want to see her father. S also reported that her elder siblings had reported that F had been horrid. Cafcass was not concerned that S would be unduly influenced by her sisters. Cafcass recommended there should be no order for contact as it would not be in the interests of the child to enforce contact. Indirect contact should continue. A psychologist recommended therapy for the family and referred to the question of whether S should be separately represented. F applied for papers to be disclosed to Cafcass legal or NYAS and submitted the question of separate representation should be canvassed with them to see it either perceived it as a way out of the deadlock. The Judge expressed concern there would be some destabilisation and some emotional stress to the child and potential harm in the process of NYAS becoming involved and refused to allow disclosure.

Judgment
Held, allowing the appeal, that the Judge was wrong not to allow the papers to be disclosed to NYAS for the purpose of advising as to whether or not this case was appropriate for separate legal representation.

The fact the Judge had very detailed knowledge of the case and had in the past seen and heard the parties was a strong factor against disturbing the exercise of his discretion. However, Wall LJ questioned whether the exercise was within or without the band of reasonable disagreement or whether the Judge had given undue weight to or ignored certain factors. The Judge had not given any real weight to the real possibility that S, properly encouraged and advised, might well think it in her interest to have an interview with her father. The hiatus between her original statement to Cafcass and the later conversation supported the proposition that S is strongly influenced by what is said to her at home. Wall LJ noted that the final hearing was imminent and on the evidence before the Judge he would be bound to say that the end of the road had been reached and there would be no point in further attempts at contact. Wall LJ considered that the Judge was wrong to think that. However given S's age and the Mother's hostility to contact it was arguably the final opportunity which the Father had to see if contact could be achieved. Whilst there was an element of destabilisation in the adjournment of the final hearing, which was inevitable if the appeal was allowed, the exercise was purely a paper one. The court had to balance the short-term harm and destabilisation to the family against the longer-term interests of the child.

Appeal allowed. Permission to disclose papers to NYAS granted

Cases referred to in the judgment:
Re B (Section 91(14) Order: Duration) [2003] EWCA Civ 1966, [2004] FLR 871

Digest prepared by Lynsey Cade-Davies

Read the full text of the judgment here