A (A Child), Re

LORD JUSTICE McFARLANE: This is an appeal in the course of very long running proceedings with respect to a boy, "B", who is now aged 12 years. The principal issue that occupied the lower court and is now the focus of this appeal is the question of re-starting contact between the boy and his father after a protracted break in a context where B and his primary carer, the Mother, have significant psychological and/or emotional vulnerabilities connected with the very issue of contact. In the event, the judge, His Honour Judge Atkins, sitting at the Family Court in Croydon on 17th September 2014, concluded that it was inappropriate to make any order for direct contact at that time but he did make an order for limited indirect contact. It is against that decision that the Father now brings this appeal, which comes following a grant of permission made by me on an earlier occasion.

There have been supplementary issues before this court relating to altogether smaller matters in the case, but each not without its own internal importance. The first is whether the Father should be given the details of B's general practitioner so that he can be kept informed of the boy's general health and well being. Initially that was contested before the judge and was an issue to be raised within the appeal. Fortunately, the parties have used the opportunity of the short adjournment to have a discussion on this and there is now agreement, and indeed as I understand it the Mother has now disclosed the relevant details to the Father, subject to an undertaking by him that he will not use that information to seek to obtain the Mother's home address. The Mother also has agreed that she will provide the Father with details of any change of GP as soon as that happens, and in any event she will include that information during the thrice yearly updates about B that will be provided by her if the judge's order remains in place.

The second issue is what, if any, information should be given to the boy's school arising out of the judge's judgment. Of course in part that depends upon the decision that my Lords and I take on the appeal itself, but the position of the Father is that at the very least a summary of the judge's judgment prepared by the children's guardian, who represents B's interests in the proceedings, should be drawn up and supplied to the school. The Mother questions the value of such a document and certainly would wish to be able to see a draft of it before agreeing. She does indicate that limited information might go to the school, but she, as indeed are my Lords and I, is considering that matter in a vacuum as no such summary of the judgment currently exists.

In order to describe the circumstances that led to the hearing before the judge, it is, I am afraid, necessary to go some way back into the background. Having made that apology, I do not in fact apologise for looking at the detail because it does seem to me that matters went awry on a number of occasions in the course of proceedings with respect to B and that there may be lessons to be learned more generally for those involved professionally in the family justice system from what has transpired in this case.

B's parents met when the Mother, who is an English lady, was still only 19 years of age. The Father, who is ten years her senior, is of Arabic/Palestinian extraction, but was already living in England and Wales when they met. B was born on 19th March 2003 and therefore is, as I have said, now aged just over 12. The couple married, as I understand it, after it became apparent that the Mother was expecting a child. That marriage was in August of 2002 and the couple, together with young B following his arrival, remained together until August 2005, when they finally separated. Initially the Father had some contact with B by seeing him during the day for an hour or so on two occasions each week. However, that came to an end on 22nd January 2006, a circumstance which triggered his application to the court for a contact order under section 8 of the Children Act 1989. At the same time, and I think on the same date, the Mother applied for an injunction under the domestic violence legislation.

Within the Children Act proceedings the court commissioned a report from CAFCASS, and it is informative to look at the information that the CAFCASS officer was able to glean in the course of her investigations. It was a full report on the issue of B's welfare and the principal aspect of the case that struck the CAFCASS officer was the "extremely strong attachment relationship" that B had with his Father, as observed by the CAFCASS officer during one occasion of observed contact which took place on 29th August 2006. The CAFCASS officer, with some prescience as matters have turned out, offered this view at paragraph 6.7 of her report:

The Mother's position at the time of the CAFCASS officer's initial involvement was to be opposed to contact at that stage.

The overall recommendation of the officer in her first report was that regular fortnightly staying contact every other weekend should be established between this still relatively young boy and his Father, and that was her recommendation made in a report dated 26th September 2006. That date is not without significance because some two days later it is apparent that the maternal grandfather reported to social services that B had been telling his mother that the Father had made threats to kill her and to kidnap B during some of the contact time that he spent with the Father. The CAFCASS officer asserted that no information of that sort was given to her during the course of her initial investigation.

The next matter of note was that on 11th February 2007 the Father was apparently some two and a half hours late in returning B at the end of contact and had taken him on a car journey which involved collecting a car at Heathrow Airport. Both the lateness of the return and apprehension on the Mother’s part that B might be removed from this jurisdiction by the Father led her to stop contact at that time, and that indeed, 11th February 2007, some eight years ago, was the last occasion that the Father saw the boy until contact was re-established for some short duration during the court proceedings.

The Mother also informed the CAFCASS officer in detail of what she had heard from B, reporting what the Father had apparently said during contact. The report includes the following quotations in that regard:

Further reports at that time in mid-February 2007 were made by the Mother to the local social services, the police and the NPSCC. Again, it is of note that on 6th March 2007 a social worker visited the Mother and B and as a result of that one visit made a referral of the Mother and the boy to the local Child and Adolescent Mental Health Service (CAMHS). In the event, as I understand it, that assessment was never taken up, but to my eyes it is striking that a social worker, on the back of one visit in 2006, would make such a referral about such a relatively young boy.

Despite the passage of events that I have described, the account of contact between B and the Father, when they were together on the limited occasions provided by the court order, remained positive and B had indicated to the CAFCASS officer "very clearly" his wish to have contact with his father. The recommendation therefore was to postpone any determination on contact whilst further assessment was undertaken, either through the referral to CAMHS or in some other way.

Pausing there, I have been struck in reading the papers by the very positive account of the Father's relationship with B at that time. Particularly, as it is common ground, that the relationship between the parents when they were still together was relatively volatile, involving certainly verbal altercations between them. It is also striking because the couple had separated in 2005, and so, for the boy, a year or more later, still to behave in such a warm and close way with his father, expressing a keen desire to see him.

Matters, however, moved on, and when the matter came before the court on 13th April 2007 the Father, rather than seeking either an adjournment for further assessment or for substantive contact orders, asked the court to give him permission to withdraw his application for contact, and that, on 13th April 2007, was the order that was made. The Father has subsequently in a statement in the current proceedings described the circumstances that led him to ask the court to withdraw the application, and in short terms he describes understanding that the Mother suffered from migraines and other physical and mental difficulties as a result of stress, he could see that the continued contact proceedings were adding to her stress and that that would impact upon her ability to cope with young B, who, as with any boy, would be demanding in terms of parental care from time to time. He also reports that the Mother:

The topic of the Father withdrawing his application had been raised with the CAFCASS officer at an early stage, and she in her report, in express terms, advised against the application being withdrawn.

In this hearing the court has the benefit of a CAFCASS officer appointed as B's children's guardian, who appears through counsel, Miss Sarah Early, and Miss Early told the court today that if B had been formally represented, certainly by this guardian, at the time of the withdrawal application in April 2007, representations would have been made on his behalf to the effect that the application should not be withdrawn and that time should be spent further assessing matters.

Pausing there on this point, I would draw attention to the decision of this court in the case of Re F (Restrictions on Applications) [2005] EWCA Civ 499, [2005] 2 FLR 950, in which the question of the approach to be taken to the withdrawal of an application was considered by Thorpe LJ, and he contemplated really two alternative situations, one in which the withdrawal was entirely neutral as to the child's welfare and really represented a position reached in terms of domestic violence allegations, as was the case in those proceedings, between one adult and another, but Thorpe LJ went on to say this at paragraph 15 of his judgment:

As Thorpe LJ says in that passage, where the welfare of the child may be impacted by the decision to withdraw, the court has a duty to determine whether or not the proceedings should continue despite the decision of the main protagonist, the Father in this case, to wish to pull out at that stage.

To make that observation is obviously to deploy the benefit of hindsight that we now have in this court. That hindsight gives us the ability to see how matters have unfolded in B's life since the withdrawal of the Father's application in April 2007. The Father considers it the most ill-advised decision that he has made in his life. He should not feel so guilty about it. It was a decision made at the time by him for reasons that he was able to identify, they were child-focused reasons, and reasons that were focused also on the welfare of the Mother in a kindly and empathetic way which fits in with every other observation made about the Father by everyone except the Mother in these proceedings. But the consequence of allowing a situation where the child was having good contact with his father but there were difficulties and a potential mental health impact on the child to fester to become established as the status quo is now all too plain to see.

The matter was therefore outside the court arena from that time until the Father made his current application on 26th November 2010, three and a half years later. However, in B's life the question of impact upon him of contact with his father remained very much a live issue. As I will explain in more detail, the Mother seemingly developed and consolidated a highly negative and adverse view of the Father to the effect that he was a dangerous man with respect to B's welfare, and B came to adopt that view. It was therefore the case that for a protracted period B received therapy three times a week from the local CAMHS unit, ostensibly to address the consequences on his emotional welfare from what had, or more likely had not, taken place when he had seen his father. The Mother, for her part, also accessed some therapeutic intervention at that time.

I have indicated that the Father applied to bring the matter back to court in November 2010. Having already expressed some concern and regret as to the withdrawal of proceedings in 2007, I am afraid it is necessary to express profound concern as to the very slow and delayed progress of the Father's application. The very fact that it only came on for determination before the judge in September 2014, nearly four years later, speaks for itself, but a perusal of the court file shows that, apart from first appointments, the consideration of conciliation and the intervention of CAFCASS in the ordinary way of events at the early stages of such a case, no substantive directions were made for a whole year. When the route map for the case was eventually considered, in November 2011, it was decided that there should be no finding of fact hearing and that the way forward was for there to be a psychological assessment of both parents and B. That was determined on 10th November 2011. However, the report of a psychologist was not achieved until nearly two years later with the report of Ms Rogers, an expert psychologist, that was filed on 30th September 2013.

It is not the function of this appeal hearing to go into the reasons for that delay in any detail. We are told there were difficulties with the legal aid and with the identification of a psychologist who could take up and proceed with the work. But even allowing for those sorts of difficulties, a period measured in 18 months or so to obtain intervention of this sort is just simply unacceptable. It is not unacceptable in an arid, technical way, but it is wholly unacceptable for this boy, who carried on growing up in circumstances where he was not seeing his father, and allowed a situation that the judge has now found was established to become even more consolidated than it had been when the Father first made his application.

Fortunately, the reports, and there are two of them, of Ms Rogers would seem to have been very important documents within the proceedings, and it will be helpful in describing the background if I turn to those, hopefully in brief terms, at this stage. So far as the Mother is concerned, Ms Rogers recorded this:

The report contains a number of direct quotations from the Mother about contact. They are in strong terms. She said: "It is just unthinkable. I can't trust him" and then "[B]’s dad has hurt him, emotionally harmed him, let alone what we don't know", "he has harmed my son, why would anyone want someone [who had done this] around their child? [It] makes me sick to think he could be around him".

So far as the Father is concerned, the psychological assessment was altogether more favourable. It included this summary:

The overall conclusion of Ms Rogers was pessimistic on the question of contact. She could not conceive that the Mother would have sufficient motivation for any therapy to succeed and she felt that B was simply not emotionally resilient enough to undergo contact if it was forced upon him. She therefore recommended against any form of direct or indirect contact. The guardian largely approached matters in the same way.

Judge Atkins, who had the case for directions before the main hearing, was plainly and rightly concerned about what he will have read. He made a direction under section 37 of the Children Act for the local authority to investigate B's circumstances. They provided a report for the court. In the event they identified the difficulties in the case, supported some indirect contact, but, crucially, did not issue proceedings under section 31 of the Children Act 1989, thereby removing any jurisdiction that the court would have to make a care or supervision order in B's case.

Having set the background as I have, it is now necessary to look at the judge's judgment, which includes a full and careful recital of that background and of the evidence that the judge heard.

The position of the Father before the court was robust. He, by the time of the hearing, had amended his application to one for residence and the strategy adopted by Mr Adler, counsel who appeared for him before Judge Atkins and who now appears before this court, was to encourage the Mother to adhere to orders for direct contact by holding the threat of a change of residence over her head should she not comply with contact orders.

The father’s case before the judge on the first two days of the hearing, which were the days when oral evidence was heard, went further. It was for there to be a change of residence at that stage. However, by the time of closing submissions the Father's position was as I have described. The judge set out the Father's case at paragraph 11 of his judgment in the following terms:

The judge, in the course of summarising the evidence, obviously dealt in detail upon the contribution of Ms Rogers, whom the judge describes as "Dr Rogers". He records her position in evidence as being, firstly, plain that the Father did not present any current risk to B, secondly, that there was a "manipulative element" to the Mother's presentation but that that was not "malicious", and in terms of contact, she advised that neither direct nor indirect contact could succeed at the present time given the extreme level of anxiety presented by the Mother.

The guardian gave evidence in similar terms and helpfully provided very clear evidence as to B's wishes and feelings. They were in terms that he did not wish to see his father. B had written a short note to the judge in these terms:

The Mother's position was in line with that adopted by her throughout, which was that she just could not contemplate contact and could not see the benefit of it for her son given all that she believed had gone before.

The judge made a number of observations about the Mother having heard her give evidence:

Those observations about the Father are very positive. The fact that in the midst of all that I have described he came across in these court proceedings as a "calm, thoughtful, caring man" is, to my eyes, an impressive observation to have achieved.

The judge then goes on to look at the matter within the structure of the welfare check list contained in section 1 of the Children Act. Rather than slavishly going through each element in a great deal of detail, he highlights, rightly, the factors that are particularly relevant in this case. Of those cited by the judge, I would draw attention to two. First of all, "wishes and feelings", and the judge, on the evidence that I have described, concluded that the express views of B were "genuinely held" and had been "expressed clearly on quite a number of occasions and I have got to give them considerable weight". The second topic I draw attention to is in relation to "harm", and at paragraph 49 the judge says this:

That is an important paragraph. Unfortunately, the judge does not tease out the details, but the clear implication is that the significant harm suffered by B, as the judge found "clearly" was the case is emotional harm, and that that harm has been visited upon him by his experience in the care of his mother. Unfortunately, the judge in that paragraph does not express any view about possible future harm, significant or otherwise, but it is plain that, on the evidence of Ms Rogers and the guardian and the judge's overall findings, unless there was a change in these circumstances of life in the care of his mother, the potential for the factors that caused significant harm in the past would remain unchecked and unchanged.

The judge then drew together his conclusions in the course of four paragraphs:

The result of those conclusions was that there was no order for direct contact, no residence order to the Father, suspended or otherwise, but a modest level of indirect contact to be operated through the offices of CAFCASS.

Mr Adler has raised a number of grounds of appeal which range widely across the proceedings. However, the principal issues raised by the appellant are these. First of all, this was in reality a case of "implacable hostility" to contact on the part of the Mother. In the course of his skeleton argument, Mr Adler sets out a deal of the background to which I have drawn attention in more summary terms earlier in this judgment, and in terms the submission is made that the judge simply failed to engage with that part of the case and proceeded by relying on other factors. Secondly, it is submitted that, difficult though her situation may be, it is an aspect of the Mother's responsibility to her son to do what she can to facilitate contact, and the judge should have relied upon that in determining the way forward. Thirdly, it is submitted that the judge's findings of significant harm, plain though they are at paragraph 49 of the judgment, do not surface again in the course of the judge's overall welfare evaluation, they do not feature in the welfare balancing exercise. Finally, Mr Adler draws attention to the fact that this hearing took place in the months leading up to the introduction into the Children Act 1989 of 1(2A) and (2B), which are in these terms:

Although other more detailed submissions are made, those seem to me to be the principal elements of the appeal.

The appeal is opposed by the Mother in straightforward and clear terms by Miss O'Malley, who acted for her below and who appears before us. She submits that the judge was entitled to come to the conclusion that he did on the evidence before him, that it certainly cannot be said that he was "wrong", and indeed that no other option could really be contemplated for this young boy. In similar terms the guardian submits that the appeal should be dismissed.

The starting point on any evaluation of issues relating to contact, and that is obviously the case in an intractable situation such as this, is that B's welfare, both now and in the future, is to be the court's paramount consideration. Now that approach has to take into account the provisions of section 1(2A), but this is not a matter that turns on dry statute law, in particular given that the provision was not in force before the judge and was not, Mr Adler candidly says, raised before him. It is and should be a given that it will normally be in the best interests of a child to grow up having a full, real and entirely ordinary relationship with each of his or her parents, notwithstanding the fact that they have separated and that there may be difficulties between the two of them as adults.

In this case the background indicates that the relationship between the Father and B in 2006 and 2007 was strikingly good, despite all that had gone before. Secondly, there had been absolutely no finding made against the Father of an adverse nature. Thirdly, all of the information in recent times about the Father, in terms of his life as it has gone forward but also his approach to B and his engagement with the process, despite the stresses and strains that will be on him, just as they are on the Mother, is entirely positive. He is described as a good man, a kind and loving father who had a very warm and close relationship with B. That is the starting point, but of course the situation has other complicating factors.

Before moving to the judge's judgment against that starting point, I would stress the approach that is to be adopted in these cases, and in doing so repeat words that I said in the case of Re W (Direct Contact) [2012] EWCA Civ 999. Normally I would simply ask the transcriber to include these paragraphs in my judgment now, but for the benefit of the Mother, the Father and her partner who are in court, I propose to take the liberty of reading them out:

It seems to me, having read a great deal now about young B, that the problem in this case is not B's problem, it is an adult problem. It is neither fair nor helpful, indeed it is likely to be harmful, to put the responsibility on B of identifying at some future date a wish to re-open contact with his father. That would be a very difficult decision for him to make in the context of his relationship with his mother.

During the course of this hearing I offered the suggestion of some form of bridge building between the adults. I suggested mediation. Given the highly conflicted nature of these proceedings, the suggestion of mediation may be seen to be surprising. I do not regard it in that way. These adults need to face up to their responsibility, and it is primarily the Mother's responsibility because she is holding up progress, and this adult problem needs, if possible, to be addressed by the adults, supported if necessary by psychological support for all concerned, and, hopefully, supported by the new partners that each of the Mother and Father now have; both of those new partners again being spoken of in very positive, helpful, mature and sensible terms in the reports that I have read. This court can do no more than provide a reality check by pointing to just what is likely to occur to this young boy if nothing is done at this stage. The project that these two parents were engaged in following the birth of their son is not to be characterised as simply looking after a young boy, or a young teenager as he will soon become. What they are engaged upon is bringing up an individual who will be an adult in a relatively short period of time. The Mother has the responsibility of bringing up a man, a man who will be of mixed heritage, and yet who has limited, if any, direct knowledge of his father's side of his heritage at this stage. He is an individual who may well be a father himself in time. It is necessary to do everything as a parent at this stage to equip him for what lies ahead in his life, rather than storing up problems for him in the future.

All of those observations, intended to be helpful to the parties, stand however on one side in relation to the appeal, and I now turn back to the judge's judgment.

In relation to the judge's approach to his findings as to significant harm, it is certainly possible to see the strength of the argument that Mr Adler raises. The judge did not, in express terms, refer to the finding of significant harm when he moved on to conduct the welfare balance. The purpose of the welfare check list is to identify the key issues in relation to the particular child in a particular case which then form the elements, one way or the other, on the scales of the welfare balance, and there is a need to broker the positives and negatives on each side as against the other to come to an overall welfare view, and it is not clear from reading the judgment that the judge did that with respect to his finding of significant harm in this case.

However, the judge's approach to the overall decision needs to be seen in the context of the overall case, and in this regard I consider that the judge cannot be criticised for the approach that he took. I make the following three points. The judge was right to identify the high level of harm that would be likely to be visited upon B if the issue of direct contact was forced upon him from a standing start. It is certainly not possible to characterise the judge's approach to that point as being "wrong". In coming to that view the judge was entitled as he did to rely upon the more detailed evaluation of the children's guardian, and for that matter Ms Rogers. There was no professional or expert evidence in the case to the contrary. Secondly, although Mr Adler was able to put forward a more sophisticated and developed plan, Plan B as it were, before this court, which involved a period of therapeutic intervention by a multi-disciplinary skilled unit such as those situated within Great Ormond Street Hospital or the Tavistock Clinic, that was not, it seems to me, a proposal put before the judge in any developed way. Mr Adler accepts that the matter was raised initially by him in cross-examination to Ms Rogers, who did not favour such an intervention. The Father's team did not have any evidence to put before the judge of communication with GOSH or the Tavistock Clinic. There was no indication of the details of any referral. Before this court, Mr Adler adapted his submission to the effect that he, as I understand it, accepted that simply to direct direct contact from a standing start would be ambitious and that there was a need for referral to a specialist unit to undertake preliminary work, but it does not seem to me that that was the way the Father's case was put to the judge, and that is a crucial difference. The judge was being asked to address the more robust case presented by the Father, initially residence transfer at that stage, but then moderately adapted to a residence transfer suspended on the basis that direct contact would be ordered and a review take place two or three months later. Mr Adler submitted that the judge should have picked up the option that had been offered during cross-examination and developed it had he wished to. In my view, the grounds simply had not been set before the judge for that to happen and it is not possible to criticise him for failing to take up the option.

So the judge was faced with the stark choice that I have described, and the third point I make is that in the end there really was no ground for choosing any other way forward than the judge chose in this case. This was a boy who was shortly to be 12 years old. He was adamantly and consistently saying "no" to any form of contact, even indirect contact, with his father. The reasons that he was saying "no" may well be subtle and sophisticated, emotionally entangled with his relationship with his mother and the mind-set that he had developed about his father in the period during which he has not been seeing him, but "no" was his approach, and to contemplate moving a 12-year-old child from that position to having contact was a formidable obstacle in the way of the Father's application. Secondly, again for whatever reason, it was established that the Mother was emotionally very vulnerable. Ms Rogers described her as at the severe end of the spectrum in terms of depression and anxiety. She attracted a diagnosis of PTSD. The impact upon the Mother's anxiety levels rising yet further because she was required to take part in contact, and the impact that that raising of her anxiety would have on B, was readily understood by the judge and rightly formed part of his reasoning. Thirdly, in terms of there really being no other option, so much time had gone by that the prospect of re-starting contact some six or seven years on was a formidable change in the circumstances and the judge was fully entitled, in my view, to conclude as he did, "it would not work", and in coming to that conclusion relying upon the evaluation of the children's guardian and Ms Rogers.

That this should be the outcome of this case is, in my view, a tragedy. It is certainly a tragedy for the Father, but, more importantly, it is a tragedy for this young man, who had a warm, easy and close relationship with his father when he was much younger before their separation took place. Some family situations are simply not amenable to the blunt instrument of a judge sitting in a law court making an order. By the time this case came before Judge Atkins, given the options that were available to him and were to be considered by him, this was one such case, and for the reasons I have described, despite the understanding I have as to the tragic element in what has transpired here, in my view his appeal on the issue of contact and residence can only fail at this stage.

That leaves the question of what information should be given to the school. On that topic this court is in great difficulty. There is of course the option of directing the judge's judgment to go to the school, but that would be an unusual course to take and not one that is normally undertaken in private law proceedings. The question of any summary going to the school is one that can really only be determined in the light of what the summary might or might not say. This was not an issue that was raised formally before the judge and developed only after submissions were taking place, or even at a later stage. In my view, it is simply not possible for this court to come to a view on that topic and it is equally not right to regard it as a matter for appeal from the judge's decision. It is to be hoped that some discussion can take place and some modest information can be given to the school so at least they are aware of the fact that there have been proceedings of this nature before the court. But other than that, I am afraid I would not accede to the invitation Mr Adler makes for this court to make any order on that topic.

LORD JUSTICE CHRISTOPHER CLARKE: I agree.

LORD JUSTICE RICHARDS: I also agree.