Orders in family proceedings - Contact order - Child born following extra marital affair between mother and father

Re H (a child: contact order): CA (Civ Div) (Lord Justice McFarlane, Sir Scott Baker): 27 February 2012

The mother and her husband (H) had been unable to have a child because H had had a vasectomy. They had reached an informal agreement with the respondent father for artificial insemination.

No true attempt had been made at conception, but what in fact occurred had been a sexual relationship between the mother and the father, which had ultimately led to the conception of a child. By the time the child was born, the mother and H had reconciled their relationship, and the father initially had a number of contact visits with the child. The contact however broke down and stopped.

The father applied, inter alia, for contact. The district judge, in light of the reconciliation of the mother and H, had placed priority upon maintaining the stability of that relationship. He had felt that any contact with the father and the child would have been incompatible with that stability, and he therefore dismissed the application for contact. The father appealed that decision. The circuit judge found that the district judge’s process and order had been erroneous on the ground that he had placed too much emphasis upon the potential for upset to the family unit if the father had contact with the child. He therefore allowed the appeal and directed contact with a phased introduction of the child to his father. The mother appealed. The issue for determination was whether the circuit judge had erred in allowing the appeal. The appeal would be allowed.

A ground for concern in the district judge’s approach had been the prominence that he had given to the potential for upset to the family unit of the mother, H and the child that might have been occasioned if the father were to have had any ongoing contact. While the circuit judge had been entitled to allow the appeal from the district judge’s decision on that ground, the circuit judge had fallen into the same error that he had discerned with the district judge’s judgment.

It was one thing for the circuit judge to have considered that the district judge had been erroneous in the process adopted and to have set his conclusion aside, but it had been a completely different matter to impose a different conclusion without himself having gone through a full evaluation process.

Nowhere in the circuit judge’s judgment had a process been undertaken of evaluating where the child’s interests lay. Accordingly, the circuit judge had also fallen into the trap of not carefully evaluating the child’s interests (see [13], [16], [23] of the judgment). The appeal would accordingly be allowed and the matter remitted for a fresh determination of the father’s application for contact (see [25] of the judgment).

Carmel Bryan for the mother; the father appeared in person.