F (a child)

This is an application by B (‘the mother’) for permission to appeal against an order made by the President, Sir Mark Potter, on 22 March 2006. That Order granted to P, the father, limited and carefully defined indirect contact with their daughter, F. Having read the skeleton arguments it seemed to us that the appeal was both important and that it had a reasonable prospect of success and, accordingly, we gave permission to appeal at the beginning of the hearing.

The relationship between the father and the mother began in 1988. F was born in 1997. The relationship came to an end in May 2004 and neither the mother nor F has had any contact with the father since July of that year.

The course of the relationship between 1988 and 2004 was turbulent. The father has a personality disorder that results in his giving way to serious and uncontrollable violence. In the periods when they were together, that violence was inflicted on the mother. They were however often apart, sometimes when the father was in prison – his longest sentence was one of 4 ½ years imposed in October 1998 for involvement in the importation of drugs- and sometimes when the mother left, with F, for a period because she could take the violence no longer. The last occasion that they lived together was in September 2001, but there was intermittent contact after that until May 2004. On at least five occasions the mother sought and obtained injunctions against the father on the grounds of domestic violence.

The father has at all times loved and shown affection for F, as have the father’s parents. She spent happy holidays in the latter’s caravan. While F frequently witnessed the violence, it was never directed towards her.

Care proceedings in respect of F were instituted in July 2002. Ms K Boulton, a highly qualified and experienced CAFCASS Children’s Guardian, was appointed F’s Guardian in those proceedings. The mother and F were placed in a refuge in Headingly. The address was inadvertently disclosed to the father by a member of the Social Security staff, so that she and F had to be moved again.

On 26 February 2003 the care proceedings were concluded. HHJ Fricker QC granted a Parental Responsibility Order to the father. He made a defined Contact Order, designed to ensure that the contact arrangements would not require the father and mother to meet. He also made a Non-molestation Order, to protect the mother. The father disregarded the terms of both these Orders. He insisted on making direct contact with the mother in order to arrange contact, making frequent threats of violence to the mother, and this situation only came to an end when he was arrested and remanded in custody on drugs charges.

On 2 June 2004 the mother obtained a Prohibited Steps Order preventing the father from removing F from the mother except at times agreed between solicitors.

Committal Proceedings were then brought against the father and on 21 July 2004 District Judge Lord found proved 68 breaches of the Orders made on 26 February and imposed a sentence of 4 months imprisonment.

With the help of the Police Domestic Violence Unit the mother and F moved to new accommodation, unknown to the father, and assumed fresh identities. The father is desolated that he has lost contact with F. He is bitterly angry with the mother for being responsible for this. He has left no stone unturned in efforts to track down the mother and F. His efforts have included suborning a civil servant to gain access to computer information in order to help him discover the mother’s whereabouts, paying a company to attempt to trace the mother by use of the internet and harassing the mother’s parents, for which he received a 5 month prison sentence. The mother and F have moved no less than ten times in recent years in order to escape the father.

The facts set out above provide the background to cross-applications in private law proceedings, which ultimately came before the President on 13 February 2006 and which led to a 6 day hearing. Ms Boulton was appointed Guardian ad litem of F because of her previous involvement as Guardian in the care proceedings. The father applied for contact, which was opposed by the mother and Ms Boulton. The mother applied for an order terminating the father’s parental responsibility, and for an Order under s. 91(14) of the Children Act 1989 preventing the father from making further applications to the court.

The evidence received by the President included oral evidence by video link from the mother, three written statements and oral evidence from the father, a psychiatric report on the father, prepared for the purpose of the earlier care proceedings, and a lengthy report and oral evidence from the Guardian, Ms Boulton. He also had ‘closed material’, in the form of a confidential statement by the mother that was, by agreement, disclosed to leading counsel for the father on terms that he would not disclose the contents to his client.

The President granted the mother’s application that Judge Fricker’s Order giving parental responsibility to the father be revoked. He also accepted that it was appropriate to make an Order under section 91(4) of the Children Act 1989 that the father should not make any further application without the permission of the court. There is no appeal against these Orders.

So far as F was concerned, the President rejected the father’s application for direct contact.

So far as indirect contact was concerned, the President accepted a suggestion made in the course of the proceedings by Anthony Kirk QC, counsel for the father, that certain specified communications between the father and F should be sent to and passed on by a neutral third party who could vet the contents in order to ensure that they were appropriate. In his judgment, which was reserved, he said that, following the end of the hearing, he had been able to make suitable arrangements with CAFCASS Legal in London to this end. The President made an Order for indirect contact in the following form:

By the end of the proceedings the President had concluded that the relationship between mother and father was at an end and that the father’s anger towards the mother and propensity to violence were such that the mother would be seriously at risk if the father discovered where she lived. It was of paramount importance that all risk of his doing so should be avoided. Thus, in rejecting the father’s application for direct contact the President observed that there were:

In these circumstances the revocation of the Order giving the father parental responsibility naturally followed. The President considered that the father would, if permitted, inevitably make further applications to the court in respect of F and that this would have an adverse effect on both mother and F. For this reason he made the section 91(14) Order.

It is necessary to consider the President’s reasons for ordering indirect contact in more detail, for this is the only part of his Order which remains in issue.

It is clear from his judgment that the President was strongly influenced by the evidence of the Guardian ad litem. He recorded that in the care proceedings the Guardian had initially advised that it was in F’s interests that she should maintain continued direct contact with the father and with his family. He recorded that the Guardian, in a Report made in May 2005 changed her mind about this, because of the “acrimonious and hostile feelings between her parents, and their impact upon her”, but that she recommended that “indirect contact with the paternal family should continue, as long as it could be managed in a safe way and does not compromise F’s current situation”. She expressed the same view in a Report in October 2005. The President stated (paragraph 110 of his judgment) that the Guardian had since changed her view “because she did not think that F’s location could be safeguarded” if indirect contact were permitted.

The passage setting out the President’s conclusions in relation to indirect contact is relatively short, and I shall set it out in full:

The Grounds of Appeal dated 2 May 2006 focussed almost exclusively on the risk that the indirect contact ordered might enable the father to trace the mother.

The skeleton argument drafted by Ms Sally Bradley QC and Ms Joanna Geddes on behalf of the mother repeated the contention that the President’s Order would carry an unacceptable risk that the father might succeed in tracing the whereabouts of the mother. It observed:

Interwoven with the submissions referred to above it is possible to trace a broader theme. The skeleton suggested that the Order made for indirect contact was inconsistent with the other Orders made by the President. The other Orders stripped the father of his status as a parent:

The skeleton failed, however, to spell out clearly the nature of this submission, for it reverted to the danger that the father would be able to use the arrangements made for indirect contact to trace the whereabouts of the mother and F.

The skeleton argument prepared by Mr Hayden QC and Mr Hargan on behalf of the Guardian stated that “None of the Learned Judge’s findings are contested”.

It supported the mother’s case, which it summarised as follows:

Like the skeleton argument on behalf of the mother, that on behalf of the Guardian followed two themes: the allegation that the indirect contact ordered carried a risk that the father would somehow use it to locate the mother and a broader theme. In this instance however the broader scheme was spelt out:

I propose to deal both with the contention that the indirect contact ordered by the President carries an unacceptable risk that it will enable the father to trace the mother and the broader theme.

The President’s judgment shows that he was crucially aware of the paramount necessity of preventing the father from tracing the whereabouts of the mother. The President stated that he had been able to make “suitable arrangements” with CAFCASS Legal in London to ensure that this did not occur. The President provided to the parties his judgment in draft on 13 March 2006 and handed it down at a hearing attended by counsel on 22 March. He invited the parties to draw his attention to any issues that they might wish to raise in relation to the draft. We asked counsel why, if they were not satisfied that CAFCASS Legal would provide a secure conduit for the indirect contact ordered, they did not raise this with the President. They replied that they had not thought it appropriate to do so.

In the skeleton argument filed on behalf of the Guardian, it is stated:

The skeleton continues:

The submission that the Guardian was opposed to indirect contact because, by keeping the relationship between F and her father alive, it would unsettle F is manifestly contrary to the President’s understanding of the Guardian’s attitude to indirect contact. We were concerned to explore with counsel for the mother and the Guardian what the basis was for asserting that the President had so fundamentally misunderstood the evidence before him. They were unable to persuade me that there was any such basis.

On 3 May 2005 the Guardian advised that indirect contact with the paternal family should continue as long as it could be managed in a safe way and would not compromise F’s current situation. On 7 October 2005 the Guardian recommended that “indirect contact with the family should continue and that this can safely be facilitated through the maternal grandparents. I recommend that the court make an order to this effect”. Plainly, up to October 2005, the Guardian was of the opinion that it would be beneficial to F that her relationship with her father and his family should be continued by means of indirect contact.

What changed between that date and the date of the Guardian’s 3^rd Report of 6 February 2006? The Guardian had sight of the ‘closed material’. I cannot, of course, disclose the nature of this. What I can say, however, is that while it bears on the degree of risk to the mother should the father discover her whereabouts, it has no impact on the emotional needs of F, so far as the desirability of indirect contact with her father is concerned.

After seeing the closed material, the Guardian summarised her reasons for changing her mind as to the desirability of indirect contact:

Although this refers to the possibility that the continuation of indirect contact could seek to increase F’s fear and worry about her situation, the focus of this passage is unquestionably on the risk that indirect contact may enable the father to trace the whereabouts of the mother and F.

We were provided with a note made by junior counsel of the oral evidence given by the Guardian. Once again this focuses on the risk that indirect contact might enable the father to trace the mother:

We were provided with copies of the final submissions of counsel, which were placed before the President in written form. These contain no hint that the case being made against indirect contact was founded on anything other than apprehension that such contact might enable the father to trace the mother and F.

My conclusion is that the President was amply justified, on the evidence before him and the submissions made in relation to that evidence, in finding that the Guardian favoured indirect contact in principle and had only “changed her view because she did not think that F’s location could be safeguarded” if such contact were permitted.

Mr Hayden, in his skeleton argument and his oral submissions, has suggested that the President misunderstood the Guardian’s views. There is, however, no evidence to support this submission. This appeal cannot be allowed simply on the assertion of counsel. If the Guardian considered that the President had misrepresented her views, I cannot understand why she did not accept his invitation to raise this matter in response to the invitation that he made when he handed down his judgment in draft. Alternatively, she could have applied to us to receive additional evidence on this matter. She did not do so.

The paramount concern of this court must be for F’s welfare. This does not mean, however, that the need for evidence can be swept aside, to be replaced by assertions by counsel. I can see no valid ground for attacking the reasoning of the President, based as it was on the evidence and submissions before him. I would dismiss this appeal.

I agree that this appeal should be dismissed for the reasons given by my Lord the Lord Chief Justice.

The resolution of this appeal has not been either easy or straightforward. Both Mrs Bradley and Mr Hayden contended before us that the President, after a trial at which the evidence had established that no mechanism for the transmission of communications between father and child could be safe, had himself crafted a mechanism with the aid of CAFCASS Legal that had not been the subject of evidence or submission at the trial. They further asserted their primary case before the President had always been to this effect: quite apart from profound concern as to the risks involved in the adoption of any conduit, indirect contact was plainly contrary to F’s welfare because of the extent to which restoration of any communication between father and child after some two years of silence would destabilise her mother. Mr Hayden put it thus in his skeleton argument:

If that was the primary case at trial it was certainly not so understood by the President. The President explained his decision to introduce a regime of indirect contact comparatively briefly. In paragraphs 124 and 125 he recorded the case advanced by Mr Kirk. He then recorded the position of the mother and of the Guardian thus:

The Guardian’s concerns were essentially the same save that, in relation to the second consideration, although F had accepted her position with a considerable degree of equanimity, the Guardian was clear that it would be of long-term benefit to keep alive a positive memory of the father and the paternal family.”

Did the President misunderstand or misstate the nature of the case advanced by the mother and the Guardian? I am satisfied that he did not. Although we do not have a transcript of the evidence given by the mother and the Guardian we have what appears to be a reasonably full note taken by junior counsel for the Guardian, Mr Hargan. That note demonstrates that neither the mother nor the Guardian articulated a primary case of fundamental harm consequential upon reintroducing communication. The evidence of each focused on the risk of tracing through the setting up of any conduit, however apparently safe, and the consequential risk of harm. Furthermore the written submissions of Mrs Bradley and Mr Hayden in closing are similarly confined.

This conclusion is borne out by the circumstances surrounding the delivery of the judgment. Mr Kirk tells us that the draft was circulated by the President on the 13^th March accompanied by a letter inviting the parties to give notice of any issue that they wished to raise and an estimate of the time that they would require for the resolution of those issues when judgment was formally to be handed down on 22^nd March. Neither counsel for the mother or the Guardian gave any such notice. Furthermore we were informed that the judgment was subsequently handed down with only the briefest exchanges between the parties and the court. Plainly if either the mother or the Guardian conceived that the President had misunderstood or insufficiently understood the nature of their respective cases they should have so stated at that time taking advantage of the opportunity provided. Equally if either the mother or the Guardian were dissatisfied with the President’s independent solution they had ample opportunity to object. The articulation of the Guardian’s concerns in this appeal did not come until the belated delivery of the skeleton argument. That suggests to me a degree of afterthought.

Nevertheless, I recognise the validity of the concerns now expressed by the Guardian. The critical question in the case was not whether the means of transmission were proof against the discovery of the mother by the father, but whether subjectively she could feel confident that she would be secure. Without that sense of security her capacity to make F feel secure would be reduced. F’s wellbeing is totally dependent upon the mother and the father bears the responsibility for the creation of that dependency. Such a fundamental consideration should not go by default simply because it was not put when it should have been put. However the arrangement which the President put in place has already been partially and successfully implemented. If the consequences that the Guardian fears begin to develop then an application can always be made for variation.

At this appeal the appellant has failed to demonstrate a principled basis for intervention by this court. The case now advanced by the mother and the Guardian:

is hardly to be found in the written evidence and reports filed before the trial;

is hardly supported by the oral evidence at the trial;

does not figure in counsels’ written closing submissions;

was not raised in response to the circulation of the President’s draft judgment;

received its first clear expression in the Guardian’s skeleton argument filed on 5^th October.

I agree with both judgments.