H (Children), Re

This is the judgment of the Court prepared by Mr Justice Cobb, after we had all considered together the issues in the case, and agreed upon the appropriate outcome. It represents the considered views of us all.

This appeal concerns two boys, T aged 17, and W aged 12. The boys live with their mother, and last saw their father nearly five years ago (February 2011). This family has been embroiled in protracted family law litigation for most of the last six years, with only minor interruptions. The boys’ father (“the father”) appeals against orders made in November 2014 in private law Children Act 1989 proceedings by Mr Recorder Williams sitting in the Family Court in Newcastle Upon Tyne.

The appeal does not raise any point of principle, but it illuminates once again the sad outcome for families when parents separate in acrimony, failing to insulate their children from their disputes.

The specific issue raised by this appeal is whether the recorder erred in November 2014 in:

The appeal is brought with permission granted by Ryder LJ. The father represented himself at this appeal. The mother wrote to the court indicating that she would find it too stressful to attend, and did not do so.

The mother and father were married in 1997, separated in 2006, and divorced in 2007. Following the parents’ separation the children lived initially with their father, and then moved to their mother; after the move, the father saw the boys and spoke with them regularly. The mother formed another relationship and remarried. In 2009, the contact arrangements faltered, causing the father to issue an application for contact; a defined order was made by the North Tyneside Family Proceedings Court in December 2009, providing for regular weekend contact between the father and the boys. Soon thereafter, the mother applied to discharge that order, but withdrew her application. In early February 2011, the court ordered arrangement came to an abrupt halt; the mother alleged that the father had been neglectful of the children at contact. The mother further complained about harassment from the father, which, she said, had upset the boys. The written material before us contains references to repeat police attendance on the parties in relation to alleged incidents of harassment and/or domestic abuse. The father was charged with the criminal offence of harassment, but was acquitted after a trial. The father applied for a further defined order. The father was of the view, which he continues to hold, that the mother was seeking to alienate the children from him. Within those proceedings, a Cafcass Family Court Adviser reported (June 2011) that while T was plainly upset at some of his father’s conduct, both boys wished to have contact with their father, W disclosing that “it was nice seeing Dad” and “enjoyed being with him”. The mother, on the contrary, was said to be “adamant that she cannot support any contact between [the father] and the children.” An expert psychological report was commissioned, and filed with the court in April 2012. The report raised concerns about the father’s conduct towards the mother, specifically his “ability to place issues in respect of [the mother] to one side in favour of the feelings and psychological well-being of his children”.

In 2012 the children were joined to the proceedings as parties, and a report was prepared on their behalf by their Guardian (from Cafcass) in December 2012. By this time, neither boy wished to see their father, W aligning himself completely with his older brother in resisting direct contact (see further [24] and [30(i)] below). This report recommended that there should be no contact between the father and the boys. The psychologist further recommended that:

“It may be necessary to do some work with [T] and [W] to ascertain the basis on which they are each making their decisions as well as the degree to which their views may have been influenced by the adults with whom they regularly come into contact”.

Regrettably, this work was not done.

The father’s application for direct contact was listed before Mr Recorder Williams on 19 December 2012; we do not understand why the application had taken 22 months to reach final hearing. The recorder heard evidence from the psychologist, but not the parties themselves. Following the evidence of the expert, the parties reached agreement which was enshrined in a consent order. The order specifically provides for the father to have monthly indirect contact (by way of cards, letters and presents) with the boys. This order was predicated on an understanding that the boys could have direct contact with their paternal grandparents. The order contains the following key provisions:

“AND UPON it being agreed between the parties that in the circumstances of the children wishing to have direct contact with the father at times when they have contact with their paternal grandparents such contact is permissible.”

“AND UPON it being agreed that the form of words in Annex 1 attached [is] to be conveyed to the Children by their Children’s Guardian and solicitor by way of explanation as to the outcome of these proceedings.

Annex 1

“Mum and Dad have agreed that:-

1.

Dad can continue to send T and W letters, cards and presents every month and for birthdays and Christmas. T and W can reply if they want.

2.

T and W can continue to see Grandma and Grandad and speak to them on the phone as often as they want;

3.

It is up to T and W to decide if they want to see Dad in future, alone with Grandma and Grandad;

4.

Mum and Dad have discussed this with the judge who thinks it is a good idea.”

At a later hearing, the recorder described the father having taken this position “very sensibly and very nobly” (4 July 2014 judgment); however, the father told us that he regrets entering into this agreement, and believes that he was badly advised to agree this approach. In his skeleton argument for this appeal he said this:

“I thought what I had agreed back in 2012 was a plan put together that works towards the boys having contact with their father but the respondent gave up on this after two months.”

Indeed, we understand that W saw his grandparents on no more than two occasions following this order. Perhaps predictably in the circumstances, the father issued a fresh application (12 February 2013) seeking an order for direct contact with his sons. The application was heard once again by Mr Recorder Williams on 16 August 2013; the note of his judgment reveals that the father gave evidence, and the mother made submissions. The order confirmed the arrangements for indirect contact, prefaced by a record of an agreement between the parents that “…the children do not wish to see the [father]”.

That it was an agreed ‘fact’ that the boys did not want to see their father can only have derived from the December 2012 Cafcass report, and/or from the mother’s submissions; from the father’s perspective, it was certainly not from any recent direct knowledge or experience of the boys. We make this point because at a hearing one year later, the recorder recorded the father’s contrary “genuine” belief that “those two (i.e. the boys) want to see him”.

The August 2013 order specifically provided, in contrast to the December 2012 order, that there would be “no direct contact” between the father and the children. We return to this later (see [25] and [26] below).

Frustrated by the lack of progress in developing his relationship with the boys through indirect contact, on 11 November 2013, the father issued a fresh application for direct contact; the mother countered with an application for an order under section 91(14) of the Children Act 1989. These cross applications were listed before DJ Grey in January 2014; the preamble to DJ Grey’s order contained two important points:

“And upon [the Cafcass officer] indicating to the court that there are no safeguarding or welfare issues, and that in light of the extensive involvement of Cafcass in the past, that it may be harmful to the children to embark on further investigations.

And upon the Applicant father indicating that he does not wish to pursue his application for contact with T given his age”.

T, by now, was 15 years of age.

The points recorded in that order (particularly the passages underlined) are relevant to our consideration of the order under appeal.

On 4 July 2014, the case was listed again before Mr Recorder Williams who considered the mother’s application for a section 91(14) order. The mother did not attend the hearing; the father attended with a McKenzie Friend. The father appears to have argued that the recorder should order “some contact, supervised or otherwise”. The short note of judgment given at that hearing does little more than reflect the positions of the parties. The recorder goes on to address the mother’s application by expressing the view that it was in the children’s best interests:

“… for there to be some break, some reassurance, some sense for those boys that there should not be any of these further applications for a while”.

He accordingly made the section 91(14) order for 12 months.

Four days after this hearing, the father applied for leave to enforce the order of the 16 August 2013 for indirect contact; we have seen neither the application nor the directions order which followed it on 5 September. However, in light of the orders only recently made, Mr Recorder Williams made two surprising directions: (1) he granted leave to the father to make this application; (2) he directed the preparation of a ‘wishes and feelings report’ on the boys from Cafcass. We must record our incomprehension of the recorder’s approach. The recorder had only just declared the need for a break from litigation, giving “reassurance” to the boys that “there should not be any of these further applications for a while”.

In response to the direction for a ‘wishes and feelings’ report, on 21 October 2014, a Family Court Adviser from Cafcass wrote to the recorder informing him that she had not seen the boys. The letter from Cafcass continues:

“[The mother] has explained to me that she has made the children aware of this application and has advised me that they are very angry with their father. They have, I am told, expressed frustration that proceedings have been allowed to continue despite being reassured by Cafcass that the Court had brought the matter to an end and that they would be given relief from being made to endure further professional intervention in their lives.

[The mother] informs me that the children have said that they are not prepared to engage with any direct work as they now feel let down by Cafcass and the court. [The mother] tells me that the children have both expressed a wish to attend court and meet with the Judge so that they may have an opportunity to say exactly how they feel and how the Court proceedings have affected them”.

The mother’s solicitors sent a letter to the Court (4 November) asking directly (if rhetorically) “how the Court feels this matter is beneficial to in particular the children for it to be continuing and whether it is an appropriate use of court time and resources.” The father sent a number of e-mails to the court; we asked for sight of copies of these e-mails but the father has not been able to provide them to us. On 13 November, on reading the documentation filed but without hearing from the parties, Mr. Recorder Williams dismissed the father’s application for enforcement, confirming the orders of 16 August 2013 and 4 July 2014. No judgment appears to have been delivered to explain the reasoning for this order; in subsequent correspondence with this Court, the recorder explained that he had heard the father on 4 July, he re-read the file (including correspondence from the father) and “saw no reason why not to make the order that I did … having regard to the welfare of the children”. It is against this order that the appeal is lodged.

At the oral hearing of the permission application, the father was encouraged by Ryder LJ to seek to set aside the November 2014 order made in his absence, pursuant to CPR 1998 Part 23.10, but the father declined to take this course. In granting permission to appeal, Ryder LJ was of the view that there was a reasonable case to argue that:

The father told us that he has faithfully sent letters to the boys every month since the order of 12 December 2012.

This court approaches its task on this appeal fully cognisant of the rights of children and parents to respect for their family life, and that:

“The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life” (see Gnahoré v France, (Application No 40031/98) (2002) 34 EHRR 38, para 50).

We further acknowledge the responsibility on the Family Court to take all necessary steps to facilitate contact, as can reasonably be demanded in the special circumstances of each case (see Glaser v United Kingdom (Case No 32346/96) (2001) 33 EHRR 1, [2001] 1 FLR 153). Moreover, in domestic legislation, there has been, since 2014, a clear presumption that:

“unless the contrary is shown … involvement of [each] parent in the life of the child concerned will further the child’s welfare” (section 1(2A) Children Act 1989).

In cases in which direct contact is not achievable, we recognise (as did the recorder in the court below) that it is ordinarily highly desirable that there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent (see Re P (Contact: Supervision) [1996] 2 FLR 314).

We, of course, are conscious that when making any section 8 order, the Court is obliged to have regard to the “ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)” (see section 1(3) Children Act 1989). The Family Court is ever anxious to ensure that the child’s view is before the Court, particularly given the recognition of our obligations under Article 12 of the United Nations Convention on the Rights of the Child 1989.

Having the relative advantage of a longitudinal review of the litigation, and the progress of contact (or the lack of it), we are in a good position to assess the wisdom and effectiveness of some of the orders made in this case. While a good degree of judicial continuity was achieved in this case, it will come as little comfort to the father that we identify four possible errors along the way.

First, we wish to record that it was probably unwise for the judicially approved consent order of 19 December 2012 to have imposed on the children (then aged 14 and 9) the burden of deciding whether or not to see the father. In Re S (Contact: Intractable Dispute) [2010] EWCA Civ 447, [2010] 2 FLR 1517, Thorpe LJ described a similar order (i.e. which provided for the children to decide whether to see their father or not):

“…a highly unusual provision and, whilst it seems on the face of it to conform with the children's wishes and feelings, in reality it burdens them with a responsibility that they should not be asked to bear at their respective ages of 12 and 13” (para [2]).

We consider that the parties and the recorder fell into a similar error here. The flaw in the order is further highlighted by the obviously differing expectations of the parties as to how contact would evolve; the father harboured expectations of contact which we consider to have been over-optimistic, given the clearly expressed views of the boys and their mother. We suspect that these flaws undermined all that followed. However this order was made three years ago, and the order then made is not under appeal today.

Secondly, although there is no transcript of the judgment of 16 August 2013, we have now seen the recorder’s note of reasons (obtained only since the father appealed to this Court), and in light of this we are driven to the view that the order of 16 August 2013 has been incorrectly expressed in a material respect. The note of reasons reads:

“I took the view that it would not be appropriate, bearing in mind the welfare of the two children, to order direct contact.”

The judicial intention, to our mind, should have been reflected by an order in the terms: “no order in relation to direct contact”, instead of “there shall be no direct contact” which is how the order is expressed. There is a material difference. No order for direct contact was not inconsistent with the father’s hope (and his understanding of the court’s strategy) that indirect contact would in due course lead to direct contact. We propose to send this judgment to the recorder with an invitation to him to amend the 16 August 2013 order under the slip rule to correct this.

Thirdly, in the note of judgment of 4 July 2014, there is virtually no judicial reasoning to support the recorder’s imposition of an order under section 91(14) (see [14] above). We would reasonably expect that in making such an order a judge would have referred, even if in passing, to the guidance given by the Court of Appeal in Re P (section 91(14) Guidelines)(Residence and Religious Heritage) [1999] 2 FLR 573. The court’s powers under section 91(14) should be exercised sparingly, and only with proper reason, after weighing up a number of relevant considerations; it is “the exception and not the rule” (see Re P above, Guideline 4). There was no such evaluation, and the order does not specify the applications to be covered by the order: an absolute prohibition on making any application to the court would not generally be contemplated under section 91(14). We note that Ryder LJ was of the view that the order was arguably ‘wrong in principle’, and we are inclined to agree; however, (a) this appeal is not against the making of that order, and (b) the order has in any event now expired rendering any argument about it largely academic.

Fourthly, assuming that the section 91(14) order was properly made, we are in very considerable doubt (as we indicated above [15]) that the father should ever have been given leave on 5 September 2014 to make an application to enforce the order for indirect contact, and if, contrary to our view, leave had been so appropriate, we are doubtful of the wisdom of him ordering a ‘wishes and feelings’ report at that time.

What was presented as an application to ‘enforce’ indirect contact was, as the father candidly informed us at the hearing, in truth an application for a variation of the earlier indirect contact order, alternatively for a free-standing section 8 Child Arrangements Order; either way, what he really sought was direct contact. An earlier such application had, only five days before he launched this application, just been dismissed. Indeed, there was nothing in the earlier orders (16 August 2013 or 19 December 2012) for the court to enforce: there was a clear understanding that the children would not be expected to reply to his letters/cards/presents, and it would not in our view have been appropriate to order them to do so. There was no order (as there was, for example, in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124) that the mother should accept delivery of cards, and read or show such communication to the child.

Furthermore, assuming for a moment that leave to make the application had been appropriately given, we are highly doubtful that an order for a ‘wishes and feelings’ report should have been ordered at this stage of the case given that:

Turning to the order under appeal itself, the father appears to have acknowledged earlier in 2014 (see [12] above) that he would not pursue his application for T, given his age; the father accepted in presenting his appeal that his case was, for the same reason, not directed to T so much as to W. The recorder cannot therefore be criticised for not enforcing an order which the father had earlier acknowledged would not be pursued. In any event, by the time of the hearing in November 2014, T was 16 years old. No order could have been made in relation to T unless the court was satisfied that the "circumstances of the case are exceptional" (section 9(6) Children Act 1989). The father did not, and does not, mount a case that this was such an exceptional case.

The recorder cannot be criticised for rejecting an application to ‘enforce’ an order which was not capable of effective enforcement. While the manner in which the application was dismissed is questionable, given the lack of opportunity for an oral hearing, we consider that the recorder cannot be criticised for taking the course he did.

The father is unrepresented in this appeal as he was in the court below. He has prepared all of the documentation for his appeal himself, and presented his case with moderation, notwithstanding his obvious distress at his situation. In his written argument for the court, the father said this:

“Dealing with family law issues can make for contentious situations, which is why these cases are conducted with extreme care, as the effect on one’s personal life as the result of a court ruling can be immense. It is for this reason that family law situations are treated with great tact in order to ensure a fair outcome for all.”

This shows a good understanding of the process of family law, and the approach of the Family Court to cases of this kind. That the father now finds himself with no meaningful relationship with his boys is highly regrettable for him, and for them. Different strategies along the way may have yielded different outcomes; it is difficult to say. However, we can be sure that the recorder was not wrong to refuse the enforcement application, and the father’s appeal therefore must fail.