A Court Order stipulating there should be no contact between a father and child has been judged as ‘draconian’

Contact between a parent and child is fundamental to family life and normally in the child’s interests – regardless of his or her wishes, according to the Court of Appeal.

In R (A Child) [2014] EWCA Civ 1664 a father appealed against an order he claimed was draconian. A court had earlier ruled that he should have no contact with R, his twelve year old daughter, unless R agreed to such direct contact.

The father was absent from his daughter’s life with no direct contact for about seven years after he failed to turn up to court proceedings begun in 2005 to establish contact. He began indirect contact with monthly cards in August 2012 when R was 11 years old following fresh legal action. This was unsuccessful because R refused to open any of her father’s letters.

Following an investigation, CAFCASS reported that R did not want and direct contact with her father. The investigating officer also reported that the indirect contact caused R distress and anxiety. The investigator was satisfied that the daughter’s decision had not been influenced by her mother.

The judge accepted the CAFCASS report recommending no direct contact between R and her father and issued an order accordingly.

However the Court of Appeal held that this order was draconian and allowed the father’s appeal.

The CA emphasised that in determining the welfare of the child consideration must be given to the importance of direct contact between parent and child. Lord Justice Clark said such contact is a fundamental part of family life, nearly always in the interests of the child and can only be terminated by the court in exceptional circumstances and where there is no other alternative.

He said a judge has a duty to consider all available options to promote direct contact before making any orders. Contact should only be terminated if such contact was detrimental to the child’s welfare. The court should take a long term view and not give too much weight to temporary domestic issues, he said. He mentioned Re C (a child) (2011) and said the key issue is whether the judge had taken all necessary steps to facilitate direct contact.

Lord Clark noted the relatively short periods of contact between father and daughter and observed that ideally she should have been taught that contact with her father would be good for her. He said the daughter was intelligent and competent and of an age where her views should be considered – but he said that it was unfair to leave the entire burden of the decision about contact on the shoulders of an 11 year old. He said that since the order had no provision which might even encourage contact between father and daughter that the order was draconian.