Contact orders – Indirect contact – Welfare reports

Re H (children): CA (Civ Div) (Lord Justice Thorpe, Lady Justice Smith): 22 September 2010

The appellant (X) appealed against a decision to refuse to grant her an indirect contact order with two children (H), who were her half-brother and half-sister.

H were cared for solely by their father, the respondent (F). H’s mother, the second respondent, had dropped out of their lives. F had opposed the application as he feared that X would reintroduce H’s mother into their lives.

A CAFCASS officer had recommended that an indirect contact order was appropriate, with contact being made by letter every three weeks for a six-month period and a review at the end of that period.

The CAFCASS officer believed it was important for H to know about their background and heritage and that it was possible to enlarge that understanding by them having contact with X. The judge was persuaded to reject X’s application and the programme of contact recommended by the CAFCASS officer. X submitted that the judge had erred in departing from the clear recommendations of the CAFCASS officer without sufficient reasoning.

Held: The judge had given insufficient weight to the right of a child to a wide family life, which in H’s case would include X if the process of the proposed cautious experiment succeeded. The judge had fallen into fundamental error in giving too much weight to F’s anxiety relative to the importance of potential gain for the children. The judge’s appreciation of the CAFCASS officer’s reasons was impeccable but his reasons for departing from them were scant. When balancing the advantages to the children against the risk of harm to them the balance came down in favour of a positive approach since the risks to the children were minimised, given the safeguards written into the proposed programme of contact. Consequently, an indirect six-month contact order, to be managed by the CAFCASS officer, would be ordered.

Appeal allowed.

Jessica Pemberton (instructed by Watson Esam) for the appellant; the respondent appeared in person.