K (Children)

THE PRESIDENT: This is the application of Mr K, whom I shall call the father, to appeal against an order made by Bracewell J, on 13th May 2005, when she dismissed the father's application for a residence order in respect of his two daughters, L and S, and in addition ordered that there should be no direct contact with the father until further order. She made an order for reasonable indirect contact in the manner set out in the order.

At the hearing before Bracewell J, at which the father was represented by counsel, she was faced with finally resolving a case that had been before her on several previous occasions in the course of a long history of litigation. This has been marked by the mother's intransigence in resisting orders of the court requiring her to give direct contact to the father in respect of his daughters, with whom, in the earlier stages of the litigation, he had a good relationship and for whom arrangements for direct, though supervised, contact had gone successfully. However, that relationship became eroded, as a result of the mother's influence and behaviour, to a point where before Bracewell J, on 13th May, the girls were refusing to have contact with their father, of whom they had become fearful, despite the best efforts of social workers in the case to ease the path towards contact.

An outline history of the matter is as follows. The parents met and formed a relationship in 1993 when the father was an asylum seeker from Iran. Their elder daughter, L, was born on 21st December 1994, so she is now approaching 11. Their younger daughter, S, was born on 6th March 1997 and she is now eight-and-a-half. The parties separated in April 1998 when L would have been three-and-a-half and S just over one year old. In July 1998 the mother married her husband, a Mr M. She had one child by Mr M and has two children by her current partner, with whom she is now living.

In December 1998, the father took S to Iran without the mother's consent and in a judgment of this court, dated 22nd May 2002, Johnson J said:

However, the mother eventually managed to get S back to the country in February 1999 and she has lived with her mother and subsequently the mother's present partner ever since. The father applied for contact and parental responsibility in March 2000 and added a residence application in May 2000.

By order of Kirkwood J, on 1st August 2000, the mother was ordered to make the children available for contact on two occasions in the presence of the Court Welfare Officer for the purpose of preparing her report. The mother did not do so: an early indication of her attitude throughout a large number of subsequent proceedings, and so the Welfare Officer was unable further to assist the court.

There was a three day interim hearing before HHJ Davies, on 17th January 2001. This resulted in a narrowing of the issues and an order for the mother to attend a Contact Centre for supervised contact sessions. The first final hearing was before Bracewell J on 9th April 2001. She made a number of findings adverse to the mother's credit on that occasion. She observed that the mother had sought to give the impression that the father had very little contact with the children. In essence, he only saw the children by virtue of the fact that he lived close by and ran into the mother and children when she was shopping. These were opportunities for him to see the children occasionally. Bracewell J said:

However, when the matter appeared before Bracewell J the position had been reached whereby according to the Court Welfare Officer, Mr Walker:

Despite that, Bracewell J ordered indirect contact for a month and then supervised contact with a view to deciding whether it could progress to unsupervised contact. There was to be a further Court Welfare Officer's Report to assess progress in six to nine months’ time.

The mother continued to be obstructive, so far as contact was concerned. As a result of various breaches by the mother of Contact Orders which had penal notices attached, the father was reduced to issuing proceedings for committal to seek to obtain compliance. At a hearing before Johnson J, on 27th May 2002, when the mother was in breach of the most recent Contact Order made on 14th January 2002, the father was persuaded to withdraw his application. At that stage it was apparent, and the father has placed great emphasis upon this before us, that the supervised contact which had been ordered to take place between the children and the father was going well.

The Family Reporter reported that the children showed no fear of their father and no reluctance to see him, but there was reluctance to engage with him. She said their stance seemed to be deliberate rather than an emotional reaction. Those observations were borne out by reports from the Contact Centre and, despite the apparent progress that was being made, it was apparent that the mother was giving contradictory accounts concerning what had happened there and of what her attitude was towards such contact.

Johnson J found that this was in keeping with Bracewell J’s findings:

Johnson J determined that he had to balance the risk of abduction against the opportunity for the children to develop a proper relationship with their father. He ordered contact on alternative Sundays from 2 pm to 5pm at the contact centre, starting in May and continuing until July, and then starting at the beginning of August, 10.30am to 5.30pm on alternative Saturdays unsupervised or unobserved. The father was to hand over his passport to the mother when the children were handed over.

The mother breached the order for supervised contact on 7th July and 21st July. The father applied for her committal and that came before Hughes J on 2nd August 2002. Hughes J adjourned that application and set further contact dates for unsupervised contact on 10th August, 7th September and 14th September, but the mother failed to comply. The father therefore made another application for her committal and this came before Bracewell J, on 20th September 2002, when the mother admitted five breaches of the orders.

Bracewell J committed the mother to prison for six weeks for her admitted breaches of the order, but suspended this for six months on condition that the mother made the children available for unsupervised contact every alternate Saturday from 10.30am to 4.00pm beginning on 28th September. She concluded her judgment with a clear warning that, if the order was not complied with, the mother would expect to go straight to prison and so she had better bring a suitcase with her next time.

The mother did not heed that warning. She did not comply on 28th September and so the father applied for the suspension of the prison sentence to be lifted. On 16th October 2002, Bracewell J lifted the suspension and ordered the mother to be committed to prison for 42 days. The mother was not represented on that occasion, having failed to obtain representation either from the Legal Services Commission or the Bar Pro Bono Unit, in both of which endeavours Bracewell J had endeavoured to assist her by making adjournments.

Upon appeal to the Court of Appeal, at which the mother was represented by counsel, the decision of Bracewell J was reversed and the Committal Order set aside. The Court of Appeal anticipated that the matter would return to court within a short timescale, meanwhile making an order for supervised contact. The purpose was stated by Hale LJ as follows:

Regrettably, owing to the unavailability of court time, coupled with the pregnancy of the mother and the birth of a further child, there was a delay of one year before the matter came back before Bracewell J on 28th October 2003. By that time there had been repeated obstruction by the mother in relation to contact either by failing to attend, by attending late, or bringing only one child with her. By 27th June 2003, the father had filed six affidavits to commit for six separate breaches of the current Contact Order and on five further successive weeks of contact the mother and children failed to attend.

On 8th August 2003, Miss Baron QC, as she then was, sitting as a Deputy High Court Judge, adjourned the applications to commit on the undertaking of the mother to take the children and to encourage them to have contact for two hours with the father at the Contact Centre on specified dates. The mother complied on only one of the five dates provided for.

At a further hearing before Bracewell J on 28th October 2003, she had before her a report from Dr Dennehy, previously ordered on 19th February 2003, to deal with the effect on the children of their continuing to have contact in the light of the mother's alleged emotional and psychological opposition, and the probable effect on the children of the mother being committed to prison.

Dr Dennehy gave evidence, accepted by Bracewell J, as follows:

Bracewell J found from the history that the mother had been manipulative throughout the court proceedings by making promises and giving undertakings that she had no intention whatever of keeping. She referred also to her breaches of the undertakings to Miss Baron QC. She observed that Dr Dennehy had questioned whether the current harm being suffered by the children was significant within the meaning of the Children Act and stated that she had no doubt that it was significant. As Bracewell J said:

Bracewell J then observed that the local authority should consider the question of commencing proceedings under section 31, having first investigated and reported under section 37 of the Children Act. The judge added that she hoped the outcome of the investigation would produce a plan for the children which would address their diffculties and alleviate the avoidable harm which they were likely to suffer as a result of non-contact with their father.

Bracewell J also ordered that a guardian be appointed on behalf of the children. She made clear that, at that stage, she did not consider the position merited an Interim Care or Supervision Order because the children were not in any immediate danger requiring protection and there was no care plan. A Section 37 Report was subsequently produced by a senior and experienced social worker, Miss Phillip-Sergeant. That Section 37 Report made clear that the local authority would not consider it appropriate to issue care proceedings or make a Supervision Order. It stated:

In dealing with Bracewell J's concerns that the children were suffering harm by being deprived of a relationship with their father, the report stated:

The assessment as to the cause of the children's alienation from the father was said in the report to have:

On 12th January 2004, following the suggestion in the report that the relationship with the father might be restored if indirect contact occurred in combination with family therapy, Bracewell J made a Family Assistance Order under section 16 of the Children Act. The court directed that the local authority should file and serve a report as to the progress of the Family Assistance Order under section 37 by 4th May 2004. It also ordered interim indirect contact by card or letter but otherwise no further contact or further order, and an updating report from Dr Dennehy on residence as well as a Cafcas Report for the purposes of a hearing as to Direct Contact, Residence Order and Committal on 24th May 2005, estimated for three days.

A Family Assistance Order Progress Report, dated 24th May 2004, was prepared principally by a Miss R, who has plainly acquired the trust of the children. She made clear, however, the difficulty and unwillingness of persuading them to discuss their relationship with their father. She said:

On 21st May 2004, the Cafcas guardian, Miss C, reported that so far as the well-being and domestic circumstances of the children were concerned, she had no criticism of the happy family set-up relationship which appeared to exist in the mother's home. At the same time the report acknowledged the justifiable frustration of the father as well as his genuine affection for and desire for full and proper contact with the children. However, the report was clear that there should be no order for immediate direct contact, let alone a Residence Order in the father's favour. At paragraphs 9 to 11 of the report it was stated:

While recording the father's desire to pursue his application for a Residence Order and committal as the only way of getting to see the children, it was also recorded at paragraphs 24 and 25:

In relation to the various aspects of the father's application, the report observed, in relation to the suggestion of a Residence Order, at paragraph 69:

A further Family Assistance Order was recommended for a six month period naming both children and the parents, the matter thereafter being returned to the court for a review at the end of that period. It was said that there should be an expectation in so far as it was possible for the ongoing work of the children to move towards direct supervised contact in the presence of the social worker.

Thus, on 24th May 2004, the court continued the Family Assistance Order for a further six months with the expectation mentioned in the report. Eventually supervised contact was set up. Despite Miss Rathore's continuing work the children remain of the same mind. On two occasions of face-to-face contact arranged for November the children simply refused to enter the room in which the father was waiting. On the second occasion, despite Miss Rathore's sympathetic efforts to persuade them, they became very distressed. Details appear in the Addendum Guardian Report, dated 25th November 2004, and a further Section 37 Report, dated 26th November 2004, signed by Miss Rathore. She made clear that she had made little or no progress with what she called the entrenched perspectives of the family members:

As a result Miss Rathore saw the only possibility of moving forward as lying in a programme of expert family therapy. Accordingly, on 26th November 2004, Bracewell J directed disclosure by the local authority and guardian to the Tavistock Clinic for the purpose of obtaining their proposals for a programme of family therapy with a view to direct contact. The matter was to return before her for the purpose of considering the Tavistock proposals.

Unfortunately, at this stage, the father’s hitherto reasonable relationship with Miss Rathore broke down under the strain of the continued lack of progress. The details appear in the Section 37 Report, but, in essence, the father considered that Miss Rathore had made insufficient efforts and that nothing but an order for direct contact would achieve any degree of progress. In the light of the position as it stood, and after talking to the Tavistock Clinic, Miss Rathore did not consider that family therapy was a viable proposition. Nonetheless with judicial encouragement the local authority, on 7th January 2005, requested an assessment from the Tavistock on the viability of allowing the children to have contact with the father and the Tavistock did so on the basis of an interview with the mother and the father.

There is no need to set out the contents of the lengthy report received, save to set out its conclusion which resulted in part from the father's angry and agitated state and his observations that if at the end the matter did not go his way he would take the law into his own hands and that he knew what to do. At paragraphs 62 to 65 it was stated:

Miss Cooke, the guardian, made her third and final report on 27th April 2005. It was plain that by this time the father was in a very disillusioned state. It was stated, at paragraphs 22 and 23, that:

That was the state of the evidence before Bracewell J at the time of the judgment from which the father seeks permission to appeal. She also took into account the oral evidence which was called before her and which was heard over three days.

I shall return to that judgment shortly but first I would say this: I have listened with sympathy to the father's submissions. This is one of those cases where it is apparent that over the years, or at least between 2001 and late 2004, the mother, as the primary carer, has been so resistant to contact and so intransigent in the face of court orders that the children have themselves become resistant to any direct contact with the father. This has been caused by a combination of :(a) regular exposure to the mother’s views of the father, his conduct and motives ;(b) the inevitable extended involvement of social workers created by the mother's intransigence, as well as extended litigation and (c) as an almost inevitable consequence, agitation and anger on the part of the father who genuinely wishes for that which he should ordinarily be entitled to enjoy, namely a relationship with his children, and to play a part in their upbringing.

It is nonetheless the duty of the court, when seeking to resolve residence and contact disputes, to regard the welfare of the child as paramount. This does not mean that the court should automatically be guided by the wishes of the child, as expressed to social workers or the court, particularly because a young child may well have been submitted to pressures or influences which can and should be overcome by patient and sensitive efforts on the part of social workers, even though the carer cannot be persuaded to co-operate in the long-term interests of the child. However, if a position is reached where a child, whether or not as a result of improper influence, has formed a real fear or antipathy towards contact which cannot be overcome, at least without causing substantial distress or harm to the child, then at that stage, unhappy and upsetting as it is for the parent concerned, the court can and should refuse to make an order for contact.

That regrettably is the position which Bracewell J found to have been reached in this case. In that respect I can see no error of principle or proper criticism of her approach. It is, of course, the case that she came to the hearing as a judge who had gone to considerable lengths to achieve contact for the father since first hearing the case in April 2001 and ordering supervised contact over the doubts expressed by the family court welfare officer at the time. She had continued to be familiar with the case and the mother's intransigence in respect of which she had made a committal order. Nonetheless, she was satisfied at the hearing in May of this year, after fully reviewing the history, that the position had been reached when an order for no direct contact was appropriate.

I should make it clear, at this stage, that it is only the judge's order for no direct contact against which the father appeals. It is pertinent, however, to refer to the terms in which the judge dismissed the application for a Residence Order. She said at paragraph 15:

So far as the order for no contact was concerned, and this is the only respect in which the father now seeks leave to appeal, Bracewell J stated this: and I read from paragraphs 12 to 15 of her judgment:

In the face of the evidence to which the judge referred, I can find no fault in her approach or her conclusions, or the order which she made. The father's Grounds of Appeal are sparsely stated. They are: (i) that in all the previous hearings which had taken place before Bracewell J, the final hearing was the first hearing at which he was denied direct contact, despite the fact that previously there had been expert evidence recommending that he should not have it; (ii) that refusal of such contact was a breach of his right to respect for his family right pursuant to Article 8.2 of the European Convention of Human Rights; and (iii) that the consistent delay in bringing the case to a final hearing over a five year period amounts to a breach of his Article 6 rights.

I shall deal with the points in reverse order. Article 6.1 of the European Convention of Human Rights requires a hearing within a reasonable time. Further, section 12 of the Children Act establishes a general principle that any delay in determining questions as to the upbringing of the child is likely to prejudice the welfare of the child. Strasbourg case law does not establish any definite timescale for hearings, taking the view that an acceptable timescale will vary with the complexity of the case, what is at stake for the applicant, and the conduct of the parties.

In my view in the light of the very complicated history and the intransigence of the mother, it is unlikely that the Strasbourg court would hold that there had been a breach of Article 6. However, whether or not it would do so, the duty of the court at the time of the final hearing before Bracewell J was to give paramount effect to the welfare of the child as then presented, and permission to appeal must depend upon the merits of the case as presented to Bracewell J at the time.

So far as Article 8 of the Convention is concerned, it was undoubtedly necessary for the judge to have regard to the provisions of that article in coming to her decision. She had to bear in mind the need to respect the father's family life, not to interfere with it in a way which was not lawful or did not serve a legitimate purpose, and further interfere save to the extent necessary to accomplish the objective. That is to say, the decision had to be proportionate to the objective of child health and protection. It does not appear from the full skeleton argument of counsel for the father at the hearing before Bracewell J, that any argument was raised or pursued to the effect that Article 8 considerations precluded the court from a decision which refused direct contact if the judge accepted that the evidence before her dictated such a result, having regard to the considerations of the children's welfare.

As I have already indicated, decisions of this kind are child focused, and it is obligatory for judges trying cases under the Children Act to give precedence to the welfare of the child as the paramount consideration over the interests of individual parents. This was plainly the approach adopted by Bracewell J. It seems to me clear that in the course of her judgment she properly balanced the evidence before her. She had the up-to-date welfare and psychiatric reports to which I have referred. She heard oral evidence from the professionals. She took into account the history as set out in the previous judgments as essential background to the case and the father's contentions were put into the balance. She approached the attitude of the mother, which was perceived by the social worker to be less intransigent than it had been before, with a degree of scepticism. She was well aware of the history, as I have already indicated. She concluded, and it seems to me that on the evidence she was entitled to conclude, that the father did lack a degree of insight and was concentrating on the battleground rather than on the welfare of the children; that he had become so locked into a conflict which so affected him that he did present on occasions as intimidating, and that the children, according to the evidence, feared him and did not want to see him at the present time.

Bracewell J also found, as she was entitled to do, that the threats which he made on a number of occasions to a number of people to take the law into his own hands encouraged the mother's concerns as to child abduction. Whereas Bracewell J had been clear at a stage far earlier in the proceedings that the mother's concerns were not genuine, it appeared that by the time the matter came to court she was prepared to accept that they might have some substance as a result of what the father had recently been saying about taking the law into his own hands. She was properly able to conclude, as she did, that the litigation was putting the children under pressure and making them unhappy, that it reinforced the resistance of the children to their father, that the children needed a break from litigation and, on the basis of the expert evidence, that a point had been reached when there should be no direct contact. It is important to note that Bracewell J did not close the door on the future. She was careful to make clear that her decision and order did not prevent indirect contact and expressed the hope that the father might change his mind about having indirect contact which at the time he felt unable to take up because of his state of mind.

The father has made a number of oral submissions to us in elaboration of his Notice of Appeal. We have read in conjunction with those submissions a skeleton argument in which he takes a large number of points to the effect that the judgment of Bracewell J was either not based on evidence, or not justified by it, in the sense that she had drawn a number of conclusions as to the parties' motivation and attitudes and the welfare of the children, which were not justified.

I do not think it is appropriate to address all those matters individually. As I have indicated, I consider that there was ample evidence before Bracewell J on which she was entitled to come to the conclusion that she did. That conclusion has, in my view, all the more force in that it came from a judge who over the years has done everything in her power in a fruitless effort to make the mother co-operate and encourage contact.

In those circumstances, as it seems to me, the father has failed to show any arguable ground on which this court should interfere with the judgment of Bracewell J. His application for permission to appeal must therefore be dismissed.

MR JUSTICE WALL: I agree that the application for permission to appeal fails. When the matter came before me on 21st July, sitting as a single Lord Justice, it struck me, having read the papers, that it was one of those unfortunate cases where there had been an extremely long history of the court’s involvement, at the conclusion of which the court has failed to achieve the contact between the father and the children. Miss Coleman suggests this morning that there have been 40 such hearings. On the one hand, it was a judgment of an extremely experienced Family Division High Court Judge, indeed now the senior High Court Judge, who had come to the conclusion that this was sadly the end of the road and nothing more could be done. On the other hand, there was the undoubted gravity of the situation for the father and for children.

In those circumstances I took the view that the proper course was for the matter to be fully canvassed before this court and not to be dealt with by a single Lord Justice. I am extremely grateful to the President for his detailed judgment which sets out the history with great clarity. It is apparent from that history that the court has used every possible resource available to it over the years. There have not only been reports from Cafcass, but the children have been separately represented. There has been consideration of care proceedings with Section 37 Orders. There have been Family Assistance Orders and on one occasion Bracewell J committed the mother to prison. None of this, however, has achieved satisfactory contact and the delays have undoubtedly been substantial. In some ways, therefore, this case is a paradign example of the fact that the resources available to the courts to achieve contact are, in the end, limited. I can but express the hope that if the provisions of the Children and Adoption Bill 2004 are passed and if the courts are given wider and more flexible powers, these will assist fathers in Mr K's position to achieve a successful result. This sort of case may then become of historical interest.

Having said all that, I am driven, like my Lord, to the conclusion that Bracewell J, who was by no means unsympathetic to the father and genuinely believed as all judges do, that it is in the interests of children, wherever possible, to have contact with the absent parent, nonetheless she was driven to the conclusion that this case had reached the end of the road, so far as direct contact was concerned. The door is, of course, still open to indirect contact and these children are not going to remain the ages they are. They will soon be in a position to form their own view. However, I am in no doubt at all, having re-read the papers and heard argument, that Bracewell J had no alternative but to make the order that she did. In` those circumstances, like my Lord, I would refuse this application.

SIR IAN KENNEDY: For the reasons given by my Lord I too agree that this renewed application must be refused.