H (Children), Re

In the Sheffield County Court RS applied for an indirect contact order in relation to her half brother, S1, and her half sister, S2. She had leave to make that application and it came before His Honour Judge Bullimore for decision on 8 March of this year.

The decision that he had to take was the subject of Cafcass reports, the first one of December 2009 and the second of 5 March 2010. Unfortunately, the officer, Rhona Fleming, had been unwell and had had a bereavement so the first report was signed by her manager, but the second she was able to sign herself and she was able to give oral evidence to the judge at the hearing.

The parties to the application were DH, who is the father of these two children and has been their sole carer aided by his partner, Ms D, for some time. The other respondent, ZR, is the mother of the children, but she had dropped out of their lives sometime ago. RS is her daughter and one of Mr DH' fears in evaluating this application was that RS would effectively reintroduce ZR into the lives of these two children.

Ms Fleming's reports were positive on a limited scale. She believed that it was important that these children should come to know about their background, heritage and family relationships and she believed that it would be possible to enlarge their understanding by a series of communications from RS to her which she could pass on to the children and see where the children stood at the end of a six month period. The frequency that she proposed through that six month was a letter every three weeks. In her oral evidence, she spoke positively of her proposal and of its prospects and her evidence was little challenged.

Mr DH was in person before the judge, as he is before us today, since he falls into a category of persons not eligible for public funding on means test but not in a sufficient circumstance to privately instruct lawyers. So he put his case to the judge below as he has put it to us this morning. He is undoubtedly a very sincere father with the interests of these children very much at heart and he puts his points to the court with clarity and with effect. That no doubt swayed the judge to reject the application and the programme recommended by the Cafcass officer.

Ms Pemberton, who appeared below, was complemented by the judge for her advocacy, but that availed nothing. She has masterminded the application to this court, which was considered on paper by Munby LJ and adjourned into court for this hearing. She has this morning emphasised that the judge was in error in departing from the clear recommendations of the Cafcass officer without sufficient reasoning.

I am in no doubt that Ms Pemberton is entitled to her permission and further that she is entitled to succeed on this appeal. With all due respect to Judge Bullimore, I conclude that he insufficiently weighed the right of these children to a wider family life, including RS, if the processes of cautious experimentation succeed. I would allow the appeal principally on the ground that the judge fell into fundamental error in elevating the father's anxiety above the importance of the potential gain for these children. The judge’s appreciation of the welfare officer's recommendations is impeccable, as we see from the judgment, but his reasons for departing do appear somewhat scant.

I simply hold a fundamentally different position to the judge on the essential balance between advantage to the children and risk of harm to the children. It seems to me that was the essential question. It seems to me that the balance comes down firmly in favour of a positive approach, since the potential benefit to the children is real. I do not believe that the risk to the children is of anything like the same magnitude, given all the safeguards that are written into this limited experiment.

So for those reasons I would grant permission, I would allow the appeal and I would make an order for indirect contact for six months, all to be managed by the Cafcass officer, Rhona Fleming. Given the father's concerns and his earlier approach, I would take a simple frequency of one communication a month for that six month period. That is the order I would propose.

I agree in all respects.