G (A Child)

MR JUSTICE HEDLEY: This is an application for permission to appeal with appeal to follow if granted pursuant to an order of Wall LJ made on 27 March 2006 in respect of a child, who I will describe as O, who was born on 9 March 1999 so that he is aged seven. The case has an unusual background in that the child was conceived in what has been loosely, but I think correctly, described as a “one night stand” and that other than that there has never been a relationship between the father and the mother.

It is apparent from the evidence that the mother entertains the strongest of feelings about the circumstances in which the child was conceived, but the learned judge, no doubt wisely, declined to be drawn into that subject and declined to make any specific findings about what did or did not happen.

Moreover the child has grown up, at least for the last four years or more, with another person acting in the role of the father, namely a man called Philip, and he is to all intents and purposes the psychological father of the child, who until comparatively recently neither knew the appellant, nor indeed knew of the appellant’s status. Unusually again in a case which has such origins, the appellant has shown a commendable degree of determination in trying to form a relationship with this child. He applied in January 2002, and proceedings really have been continuous since then.

In November 2002, a most unusual prohibited steps order was made which seemed to have the effect of confining the place of residence of the child, but in February 2003, contact orders under section 8 and a family assistance order under section 16 of the Children Act 1989 were made and the following month contact was established for the first time.

The contact was progressed to the extent that, in the run up to the hearing with which this court is now concerned, which concluded on Friday 9 February 2005, the child was having contact twice a month with the appellant and the child had at least the intellectual knowledge that the appellant was his father.

In December of last year HHJ Rucker heard this matter over some three days in the Truro County Court. It was clearly a case which greatly exercised the learned judge, who had had considerable dealings with this case on a case management basis, and it is not difficult to see why he should have found this case difficult. Not only did it have unusual origins, but it had a cocktail of adult emotions in it, which made a difficult task even more difficult than otherwise it needed to have been.

The result of the hearing was an order in which the learned judge made a residence order in favour of the mother and granted contact to the father twice a year on a direct basis and twice a year on an indirect basis. He also made a new family assistance order to assist with the establishment of that contact and no doubt to ensure that indirect contact could be effective. He appears also by the order to have granted the father parental responsibility under section 4 of the Act but suspended its operation on certain terms as to the mother providing some information to the father as to education, health and whereabouts.

Now the focus of this appeal has been very much on the issues of direct contact and parental responsibility. It is important that the court reminds itself of the task that confronted the learned judge. He was clear in his views that the father had at all times conducted himself properly so far as contact was concerned, that he was able to enjoy contact in a child-centred way and that there were the undoubted beginnings of a potential relationship between the father and his son.

On the other hand, the learned judge was equally clear that the mother was deeply opposed, and had been deeply opposed throughout, to contact and although she had appeared to agree contact on the first day of this trial, the judge makes it clear in his judgment that that may have been less than wholehearted, given the impression that she created in her evidence to him.

Moreover, and again unusually, the learned judge found that not only did he have to wrestle with the mother and stepfather’s hostility and reluctance to move forward, but in paragraph 9 of his judgment he makes it clear that these matters were putting those two at considerable odds with each other, with implications for the child that can be all too readily imagined.

Although the learned judge made it clear that the applications to commit that had been made by the father were responsible and genuine, it comes as no very great surprise to learn that they did nothing to ameliorate the state of adult relationships in existence between these parties. Importantly the learned judge in paragraph 11, in considering the evidence of Dr Ahmed, expressed himself satisfied that mother’s opposition to and antipathy to contact were genuine. That is to say, they proceeded from her psychological experiences and conditions; they were not generated for the purposes of achieving an advantage in litigation, and that was a matter that weighed with the judge, in that although the mother had been managing contact, the fact of the matter is that the condition in which the judge found her to be was one that was likely to persist.

Now the learned judge inevitably considered the relationship between the father and the son, and in paragraph 18 of the judgment makes the reasonable point that of course the father by his commitment has demonstrated that he has a real attachment to O, but he goes on to say:

“But the reverse is not true. O’s attachment to Mr B is not substantial and Mrs Flanagan described him as having a degree of attachment and that it was only developing. She said in terms it is simply not sufficient to justify more contact.”

Mrs Campbell, who has argued this case persuasively on the part of the father, makes the point that that was a wrong test and when one reads a line like that in isolation, one can well see that there may be merit in that submission, but of course nothing in these cases can be read otherwise than in the context of the whole of the facts that confronted the judge.

The learned judge was therefore faced with an extremely difficult state of affairs. He had the advantage of a Rule 9(5) guardian and he had the advantage of jointly instructed expert evidence, which in this case was given by a Mrs Flanagan, who was an occupational therapist who worked with an organisation known as The Consultancy and who worked in a team with a psychologist on whose behalf she therefore must be taken as also speaking. The combined expert and professional evidence tendered to the judge was that direct contact twice a year with indirect contact twice a year was sufficient to achieve what they advised was the best that could be done in this case, which is to build contact that will keep the child aware of his origins, of the fact of his father and his concern for him.

It is also important to have in mind that the learned judge was confronted with two extreme positions. The advice given on the one hand being commended to him on behalf of mother, stepfather and guardian; and the submissions of the father on the other hand, who was clearly reluctant to depart from the twice monthly contact that he was then enjoying, a reluctance for which he of course is not to be criticised. Therefore the learned judge was confronted with two fairly extreme arguments and, in effect, invited to chose between them, and certainly it seems to me, speaking for myself, that the judge could not possibly be criticised for having opted for one out of the two advanced before him.

It is clear from the learned judge’s careful judgment that he had well in mind the genuiness of the father and the real commitment shown by the father, in perhaps surprising circumstances, to establish a relationship with his child. He was also well aware of the intransigence of the mother and stepfather as they had demonstrated it up to that point, and the hostility that he clearly thought was likely to persist into the future, and he reminded himself that he was not seeking to, but was conscious of the danger that by his order he was seeming to, reward their intransigence.

What he did, in acknowledging the fact that the order he was proposing to make might appear rather unjust to the father, was try to look at the case through the eyes of the child, applying sections 1(1) and 1(3) to the facts as he found them, and that was a difficult exercise. How does a judge acknowledge on the one hand an embryonic relationship which might come to something which could be genuinely valuable to the child and is appreciated by the parent, against the fact that every step of that relationship is going to be dogged by hostility, reluctance, intransigence, anxiety and the like?

The learned judge would have had in mind that whilst he might wish to condemn the intransigence and commend the commitment, the actual price for the balancing of those two matters was to be paid by the child and no one else. In those circumstances it is not, I think, difficult to see why the judge should have opted for the solution that he did.

His conclusions have been attacked on the basis that he simply had not given sufficient weight to the benefits of contact and that a child who had so little contact and being brought up in this atmosphere of hostility would be left with a false view of the father, and that the judge allowed himself to be overborne by the hostility of the mother and her co-habitee.

Inevitably, those are points that can properly be made; but equally inevitably, they amount to barely half the points that can be made in the case. The learned judge was never going to find a solution here which was acceptable to anybody, and in the circumstances it seems to me quite impossible to say that the judge, confronted with the problems that he was, taking into account the advice that he had, focusing as he did on what he understood to be the best that he could do for the child, was plainly wrong in the decision that he reached.

Of course that decision would have been a crushing disappointment to the father; of course it would be unfortunate for the father to see his commitment of the child apparently rewarded by such a conclusion; but those were only part of the matters the learned judge had to take into account, and he manifestly recognised those and came to a solution which in my judgment one could never suggest was, in all the circumstances, plainly wrong, and I would propose that no permission be given to appeal against the contact order that was made in this case.

The judge went on to deal with the question of parental responsibility, and it does seem that having considered parental responsibility with some care in paragraphs 25 and 26 of his judgment, and in the last paragraph at the end, he did not actually express a concluded view. His intention may well have been correctly caught in the order drafted by counsel, namely a granting of the Parental Responsibility Order and a suspending of it on terms that the mother provided certain information.

In my judgment that leaves everyone in a completely unsatisfactory state of affairs. A parental responsibility order is not susceptible of suspension under section 4, though that result could no doubt be achieved by a raft of specific issue orders, but to make a parental responsibility order and then effectively draw all its teeth is something that would be a most unusual thing to do. At the same time, whilst I can very well understand why the judge would not want to be seen to be dismissing the application because, as he said, the classic three tests of commitment, attachment, and motive could be resolved in favour of the father, it was the ultimate welfare matter that could not be resolved in his favour because it could not be consistent with the child’s welfare for the father actually to exercise parental responsibility, other than in the very limited way indicated by the judge.

I would propose that permission is granted to appeal against the Parental Responsibility Order, that the order is set aside and there is substituted for it an order adjourning the father’s application for parental responsibility with liberty to restore upon the undertakings of the mother, if they can be forthcoming, indicated by the order which the judge made in this case.

That would enable the father, if the undertakings were not complied with, to restore the application, or if circumstances changed, for example by the making of an adoption application, to restore his application. And if there was a significant change in circumstances, and if he had complied with the orders that the court has made, clearly he may well be on fruitful territory as far as a renewed application was concerned, but that must await developments in the future.

Accordingly, I would propose that the application is granted to the extent of setting aside the judge’s order so far as it dealt with parental responsibility, and substituting the order that I have proposed.

LORD JUSTICE THORPE: I agree.

LORD JUSTICE MOSES: I also agree.