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Re C (A Child) [2005] EWCA Civ 300

An order under section 91(14) of the Children Act 1989 should be set aside, and the child (who suffered from Asperger’s syndrome) should be separately represented by The National Youth Advocacy Service as his guardian in proceedings to determine contact arrangements.

Re C (A Child) [2005] EWCA Civ 300

Court of Appeal: Potter and Wall LJJ (16 February 2005)

Summary
An order under section 91(14) of the Children Act 1989 should be set aside, and the child (who suffered from Asperger's syndrome) should be separately represented by The National Youth Advocacy Service as his guardian in proceedings to determine contact arrangements.

Background
This application for permission to appeal concerned a 14-year-old boy who suffered from Asperger's Syndrome. He lived with his mother, and was the subject of a reasonable contact order in respect of contact by his father, but had for some time shown hostility to such contact and had refused to have direct contact with his father since May 2004. In November 2004, the father applied for the following relief: that the reasonable contact order be set aside and a defined contact order made; an order that his son be joined in the proceedings, with the National Youth Advocacy Service (NYAS) appointed as his guardian; and an order transferring the proceedings to the High Court. The judge dismissed the application for a defined contact order, on the ground that the son remained very resistant to contact; and made an order pursuant to Children Act 1989, s 91(14) prohibiting the father from making any further application in respect of his son until 1 August 2005.

The court considered the judge's view of the situation, namely that he was satisfied that the father had done everything he could to sustain his relationship with his son and was now regrettably the victim of his son's stage of development and the condition from which he suffered. The court also considered the President's practice direction concerning separate representation and its provision, where such representation is appropriate, that requests should first be made of CAFCASS Legal, save in exceptional circumstances.

Judgment
Held: (1) granting permission to appeal, and allowing the appeal against the s 91(14) order, and (2) joining the son as party to the proceedings, and appointing NYAS as his guardian; that the judge had been faced with a difficult decision and plainly regretted the conclusion to which he felt driven. However, he should have recognised the disadvantages which he was under in relation to his assessment of the attitude of the son and the means by which efforts might be made to overcome it. Where there was an application of this kind by a devoted and deserving parent, of whose conduct no reasonable criticism could be made, and the child concerned showed dislike or distrust of the parent for no explicable reason other than as a product of a psychiatric disorder present in the child, it must, in principle, be wrong for the judge to proceed to make an order, the effect of which was to cut off contact with that parent, without first obtaining the guidance of an expert in the effects of that disorder with a view to obtaining advice on the best way of persuading the child to resume a relationship with that parent. Furthermore, the involvement of NYAS was appropriate since it appeared that CAFCASS had achieved all that they might reasonably achieve in this case, and their further intervention might well prove counter-productive.

The application to transfer the matter to the High Court was refused, subject to a direction that any further applications should be heard by a different judge.

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