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Zahra Pabani
Zahra Pabani
Partner - Family Law
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CONTACT: Re M (Contact: Long-term Best Interests) [2005] EWCA Civ 1090
Date:21 JUN 2005

(Court of Appeal; Ward LJ, Scott-Baker LJ; 21 June 2005)

In 1994 the mother, who was then suffering from a depressive illness, tried to pick the younger of her two children up by the side of her head. In 1997 there was an altercation between the mother and the stepmother and the children have not seen their mother since that altercation. In 1998 a psychiatrist felt that contact would be very disturbing and inappropriate and recommended a moratorium for two years to give the children time to mature and moderate their views. An order was made in 1998 for no direct contact for 2 years but the mother could have indirect contact at reasonable intervals. In February 2001 the matter again came before the court. A court welfare officer reported that the children wanted nothing to do with their mother and that there had been no positive encouragement from the father and stepmother. The children were unaware that their mother had been sending them cards. The judge subsequently ordered indirect contact through a court welfare officer who brought presents from the mother to the children. The children flatly refused to open the presents. An order was made on 11 January 2002 for no direct or indirect contact. The present application was made in April 2004 by the mother for a review of contact, a further expert's report, a guardian to be appointed for the children and the transfer of the matter to the High Court. The court welfare officer again reported that the children remained as hostile as ever towards their mother and came to the conclusion that more harm would be done by forcing contact on the children and that there should be no contact at all. Milligan J ordered indirect contact by letter or cards and that the father provide biannual reports on the children and that the mothers application for the appointment of a child psychiatrist, a guardian and the transfer of the case to the High Court be dismissed. The Court of Appeal had to consider whether Milligan J's discretion had been wrongly exercised. Ward LJ commented that in many ways the case is familiar except here the absent parent is the mother, not the father. Ward LJ emphasised concern that the children should have such extreme views of a birth parent and found that the judge had been plainly wrong. The judge had summarised recent Court of Appeal decisions wrongly. The judge had said where contact has broken down that the possibility of transferring the case up and separate representation should be considered. The House of Lords have recently reminded the Court of Appeal of cases when it can interfere. Although the children's views carry great weight, the court has to bear in mind not only their age but also their understanding. Ward LJ was critical of the failure of the court to deal with the problem. Having allowed two years of relief from the mothers direct pressure in October 2000, it was then that the court should have intervened to ensure that the court delivered what the father promised to deliver. The court could have performed its duty to these children by requiring an expert to view the papers and to report in his psychological or psychiatric opinion on the court welfare officers report that more short-term harm would be caused by contact than long-term gain. Ward LJ would allow the appeal and direct that an expert report on the advisability of a full inquiry after seeing the children into the prospects of future contact. Ward LJ was satisfied that all the qualities enumerated in paragraph 3.3 of the Presidents Direction on the Representation of Children in Family Proceedings have been shown in this case. It is an intractable dispute. There is irrational and implacable hostility and the children are suffering harm. The case was transferred to the High Court, and the Court of Appeal directed that the High Court judge should nominate the expert to report in default of agreement and the High Court judge should consider whether or not to order the guardian or NYAS to represent the children. The order for indirect contact, by means of letters and cards, should remain until a further order is made by the High Court.