Judge hearing family contact dispute criticises Welsh council of adopting “too narrow a perspective” and “missing the point” over support it could offer

A Family Court judge has questioned an unnamed Welsh local authority’s view that it will not facilitate or observe contact between a father and his disabled three-year old daughter, suggesting it was “simply too narrow a perspective” and “not in keeping with the spirit – let alone the provisions – of the Social Services and Well-being (Wales) Act 2014”.

In R-E (Contact: Support from local authorities in Wales) [2021] EWFC B95 Recorder Neil Owen-Casey said the girl of nearly four, R-E, was “a child with complex emotional and developmental needs”.

The father had sought an order for regular contact with R-E and that he should be fully involved in her health, education and welfare. However, the judge ruled that he can initially have only indirect contact with her.

The Children’s Guardian told the court there had been no local authority intervention as there was no concern with the parenting provided to R-E by the mother. She added that the family would not meet children's services criteria for intervention as there were no outstanding needs nor any child protection concerns with the parenting provided.

The Recorder said: “I can accept the latter, but I certainly do not agree with the local authority's view on the former. However, a family health advisor may be able to provide support and to ensure that R-E's care package was meeting her needs. There is a waiting list for this service. Regardless, the local authority through its disability advisor has informed the guardian that it would not facilitate or observe contact between R-E and her father.”

The Guardian told the court that direct contact cannot be achieved at present but might become possible if circumstances improved.

The Recorder said both parents needed support and it was “simply not possible for the court to be able to attach a precise time scale to how this can be progressed”.

He added: “Work that the parents need to do individually is at the mercy of waiting lists, the time to successfully engage and then putting into practice what is learnt. Managing and meeting R-E's needs have a certain predictably because she requires structure and routine. The impact of change or adjustment is not so predictable and will require careful management.”

This meant the court could not make an order that provides for direct contact “not because the father presents a direct risk to his daughter. That is not the case. The barriers to being able to do so are the unique needs of R-E. The appropriate approach must be an order set at a level that preserves a relationship and enables the family – for that is what they are – to progress in accordance with the needs of R-E.”

Turning to the local authority, which was not a party to the proceedings, the Recorder said: “I do not agree that the mother is meeting all the parenting needs… that should not be seen as a criticism but as a significant gap that most, if not all, parents would struggle to bridge in the circumstances.

“Unless this can be seen though the individual needs of the child, I do not see how this can be resolved. This is very much within the remit of a local authority, and I am supported in that view by the relevant provisions of the Social Services and Well-being (Wales) Act 2014.”

He said R-E is a Welsh child who is entitled by statute to have her well-being promoted and “a view from a local authority that it will not facilitate or observe contact between father and child is simply too narrow a perspective and is not in-keeping with the spirit - let alone the provisions - of the 2014 Act.

“I remind the relevant local authority that as a Welsh local authority, it is bound by the provisions of the 2014 Act, which is itself underpinned by the United Nations Convention on the Rights of the Child that was ratified in Wales in 2011.”

The Recorder said that was how legislation was now formulated in Wales. “The United Nations Convention on the Rights of Persons with Disabilities is also relevant and was ratified by the United Kingdom in 2009 with the purpose of protecting and promoting the human rights of disabled people. There is now a commitment for the latter Convention to be incorporated into Welsh domestic Law and it is not restricted based on age.”

Recorder Owen-Casey said it was “perhaps beyond comprehension to believe that it is not possible to readily assist a disabled child in Wales in 2021 in being able to communicate with all facets of their individual world, including their family.

“For a local authority to view this as a request for, or to observe, contact simply misses the point in my judgment.”

The judge said what the family required – all three of them – was support and assistance under the 2014 Act. “If this can be provided by a children with disabilities team or another team, and whether under the auspices of a Care and Support Plan, or otherwise, the net result would be that R-E's welfare - and in turn her wellbeing - would be promoted and supported.

“In my judgment, this case goes beyond whether there should be an order for contact following a relationship breakdown due to domestic abuse. That is an important part of the background circumstances, but it should not define this child.”

He granted the father indirect contact and made a family assistance order for 12 months,

Mark Smulian