This is an appeal, pursuant to permission given by Ryder LJ on 9 October 2014, from a judgment and order of His Honour Judge Glen Brasse given and made on 8 August 2014. The appellant father and respondent mother both appeared before us in person, though the father was able to rely upon a skeleton argument in support of the appeal prepared by counsel who had previously been acting for him. We had the advantage of submissions on behalf of the guardian from Ms Sally Bradley.

Judge Brasse was sitting in the Central Family Court dealing with private law proceedings in relation to Q, a little boy born in September 2007. His parents’ relationship ended in February 2008. Since then Q has lived with his mother. The litigation began in May 2008. It has been going on ever since, driven by the father’s understandable desire to have a meaningful relationship with his son and prolonged by the seemingly insuperable difficulties in achieving that with more than fitful frequency.

Happily, there has been a high degree of judicial continuity throughout. Judge Brasse first became involved in September 2008. Apart from two hearings before His Honour Judge John Mitchell in March and June 2009, and a hearing before His Honour Judge Horowitz QC in July 2010, every hearing has been before Judge Brasse. The tempo of the litigation is demonstrated by the fact that we have transcripts of no fewer than eight previous judgments of Judge Brasse, delivered on 19 September 2008, 10 July 2009, 11 January 2010, 1 April 2011, 16 February 2012, 16 November 2012, 12 September 2013 and 9 January 2014, and running in all to some 160 pages. I should add that the attempt by the mother to appeal against an order made by Judge Brasse on 15 November 2012 was rejected by the Court of Appeal (Black LJ) on 15 March 2013.

There is no need for me to go through the complex history of this litigation (the chronology runs to some 30 pages) in any detail. It has been summarised, dispassionately and most carefully, by Ms Bradley in her skeleton argument, which has to be read in conjunction with a most illuminating ‘chronology of efforts made to assist contact’ which Ms Bradley also prepared for our assistance. These documents have been invaluable in facilitating our understanding of how matters have reached the desperate situation in which Q and his parents now find themselves. I am very grateful to Ms Bradley, who I trust will forgive me if I take them very largely as read.

The present impasse is not for want of enormous efforts by Judge Brasse, who down the years has invited appropriate assistance from a variety of professionals. CAFCASS became involved: KD provided a section 7 report and was subsequently appointed Q’s guardian. In 2011, Dr CL, a child and adolescent psychiatrist, was instructed. Her report recommended therapy for Q and counselling for the parents. Judge Brasse directed that Q be referred to the Violet Melchett Centre (CAMHS). Q was seen by a play therapist. The parents commenced parenting sessions, but by November 2012 it had become clear that they were unable to agree the identity of their therapist. The Violet Melchett Centre, having assessed Q, reported that therapy for him was not appropriate whilst proceedings were ongoing. Judge Brasse appointed a vey experienced independent social worker, LB, to assist in facilitating contact. In March 2013, Judge Brasse directed the parents to attend therapeutic mediation with CC. Only one joint session took place. There were further reports from KD and LB. And so the matter came before Judge Brasse on 8 August 2014.

The stance of the guardian, KD, immediately before that hearing was set out in the position statement prepared by her solicitors:

In his judgment, Judge Brasse set out that:

the father is well disposed towards his son and has never done him any deliberate harm;

the allegations against the father are manifestly false;

the recent allegations made by the child against the father are so incoherent that it is difficult to formulate any single consistent charge against him;

the evidence in my judgment is overwhelmingly in support of the view that this child has been influenced by the mother’s hostility towards the father. She has demonstrated by the presentation of her case over and over again that she is only willing to hear from this child what supports her view, and ignores those parts of his presentation which does not.”

He set out events since his previous judgment on 9 January 2014. He identified the four options before him:

To order the mother again to allow contact: He rejected this, accepting KD’s advice that it would, for reasons he identified, be harmful to Q.

To order a section 37 report and engage the help of the local authority: He agreed with KD’s view that, for reasons he set out, this would be highly likely to cause Q harm. Moreover, as he commented, to go down this route would be both undesirable and unnecessary; undesirable because it would prolong the proceedings and unnecessary because he could make an order today – a specific issue order – which would achieve exactly the same thing.

To bring the proceedings to an end without further order: He described this as the counsel of despair.

To enlist the assistance of the Violet Melchett Centre.

In relation to option (iii), Judge Brasse said this:

In relation to option (iv), Judge Brasse said:

The judge’s overall conclusion was summarised in these two paragraphs:

In the upshot the order Judge Brasse made on 8 August 2014 included a specific issue order that “both parents shall cooperate in the referral to the Violet Melchett Centre for an assessment of the psychiatric and emotional wellbeing of Q together with such treatment as required”; a direction that there be no further order in respect of child arrangements; a direction that “in the event that this matter returns to Court a Guardian shall be appointed for Q” (coupled with a request to appoint KD “given her long association with the case and her knowledge of Q”); and a direction that the matter be reserved to him if available.

Judge Brasse refused the father permission to appeal. In the course of explaining why, he said this:

The father renewed his application to this court. Permission to appeal was granted by Ryder LJ on 9 October 2014. I should set out his reasons in full:

On 29 April 2015, the mother filed an application seeking permission to adduce what she called fresh and new further evidence. Her application was supported by an “overview” dated 26 April 2015 which was 20 pages long. It came before Ryder LJ 20 May 2015. He adjourned the application to be considered at the hearing of the appeal, observing that she had not disclosed the materials upon which she sought to rely. By the time the matter came on for hearing before us on 11 June 2015, the mother had lodged four lever arch files of documents, a further “representation” dated 15 May 2015 which was 35 pages long, and a “statement” dated 9 June 2015 which was 29 pages long. In the event (see below) we were able to deal with the appeal without calling upon the mother. There is, therefore, no need for me even to attempt to describe, let alone summarise, this vast mass of material deployed by her. Nor was there any need for us to consider the merits of her application, which we will accordingly dismiss.

On 1 June 2015 the guardian filed an application seeking leave to submit fresh evidence in the form of letters from Dr JP of the Violet Melchett Clinic dated 10 February 2015 and 17 March 2015. We granted that application. In the first letter Dr JP expressed the view, having assessed him, that “Q is directly and indirectly adversely affected by the ongoing court proceedings to a level which, within the overall context, is highly likely to cause significant harm to his emotional development and future mental health, with a secondary impact on his social and educational development.” In her second letter, Dr JP said “there is a high risk that [Q] will be unable to be emotionally available for therapy while the court proceedings continue and this is highly likely to seriously affect central aspects of his emotional development.”

The guardian’s position before us was summarised in this way by Ms Bradley:

Inevitably in these circumstances the debate before us, putting it in legal terms, has focused on the intersection between two sets of principles.

The first are the principles which I sought to distil in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, para 47, as follows:

The most recent in-depth analysis of the case-law is to be found in the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999, [2013] 1 FLR 494, to which we were referred. He drew attention to the decision of the Strasbourg court in Gluhakovic v Croatia (Application number 21188/09) [2011] 2 FLR 294, para 57, to the effect that obligation upon authorities, including the court, is not absolute and, whilst authorities must do their utmost to facilitate the cooperation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms, of all concerned must be taken into account, and more particularly so must the best interests of the child.

The other principles relate to case management. We were taken to my judgment in Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, paras 14-15:

We were also taken to the observations of Wall LJ in Re H (Contact: Domestic Violence) [2005] EWCA Civ 1404, [2006] 1 FLR 943, para 106:

The father’s case, as formulated by counsel then acting for him in the skeleton argument to which I have referred, can be summarised as follows:

There was procedural irregularity: The essential argument is that Judge Brasse was wrong summarily to determine the application and to bring the proceedings to an end at a one-hour review hearing without hearing oral evidence from the parties, allowing cross-examination of the guardian and allowing the father to cross-examine the mother as to her alleged commitment to therapy. What he should have done, it is said, was list the matter for a further contested hearing on oral evidence. It is submitted that Judge Brasse went outside the permissible as contemplated in Re C (Family Proceedings: Case Management) and fell into the trap identified in Re H (Contact: Domestic Violence). Amongst a number of supporting arguments, it is pointed out that there had been no evidence from the parties, written or oral, since 2012. Stress is laid on the assertion that the potential consequence for Q of not making a child arrangements order is the loss of his relationship with his father.

Judge Brasse was wrong in bringing the proceedings to an end without making a child arrangements order: Given his own findings, he should have directed a section 37 report. He should have pursued the strategy he had set out as recently as January 2014 and again approved in June 2014. He failed to explain why he was departing so radically from a strategy so recently approved. In support of the argument that his decision was simply wrong, stress is understandably laid on the judge’s own findings, on the one hand damning of the mother, on the other hand, acknowledging the facts that contact presents no risk to Q, has almost always been positive for him and would be damaging for Q if terminated.

In the circumstances, and having regard to all these matters, the process has not been compatible with the father’s Article 6 and Article 8 rights.

The father supplemented these legal arguments with his own powerful submissions that Q was growing up, as Judge Brasse recognised, in a household where he was being fed a completely distorted view of his father; that he (the father) had, unlike the mother, done everything asked of him; that Q was being denied a relationship not merely with his father but with his wider paternal family, and was thereby being denied that part of his heritage; and that the mother was selfishly motivated to monopolise her son. He said that he had never asked for Q to be removed from his mothers care. He submitted that the judge ought to have treated the mother as a vexatious litigant. The time had now come when the judge should have been prepared to consider a change of residence, at least until such time as the mother was prepared to facilitate contact. He asked us to remit the matter for a final hearing, with evidence.

On behalf of Q’s guardian, Ms Bradley pointed out that, with his long and detailed exposure to the case, Judge Brasse was well placed to form a view of how matters stood in August 2014, albeit that he heard no evidence. She points to the intensity of Q’s hostility to contact with his father, apparent in the most recent contact and other reports. She submits that the judge undertook the necessary evaluative balancing exercise, having regard to all the factors in the ‘welfare checklist’ in section 1(3) of the Children Act 1989, identifying, evaluating and balancing, on the one side, the harm being caused to Q by his mother’s influence and which he would suffer if deprived of his relationship with his father and, on the other side, the harm he would suffer if forced against his wishes to have contact with his father. The judge, she says, carefully considered all the options open to him and evaluated each in turn. He was justified in concluding that nothing was to be gained by listing the matter for a further hearing. Given the real issue at the heart of the case, neither a section 37 report nor a fact-finding hearing would have assisted the judge, nor, she says, would they have assisted in diffusing the parental conflict. In doing what he did, Judge Brasse, she submits, chose the only realistically workable option for preserving Q’s relationship with his father. He appropriately took a long term view, aware that any attempt to impose immediate contact was almost bound to fail. She points out that, although it did conclude these proceedings, the order was effectively not final, contemplating, as it did, the possible resumption of litigation in future. The appeal, she submitted, should be dismissed.

In my judgment, Judge Brasse, faced with an almost impossible situation, took a course which was not merely open to him but which was, in reality, probably the only course that stood the slightest chance of achieving what was so pressingly needed – the resumption of Q’s relationship with his father.

The judge was acutely conscious of the desperate position in which Q and his parents now find themselves. He was, rightly, unsparing in his criticism of the mother and unflinching in his analysis of the harm she was causing Q. But he was faced with what he realised was the reality, that the strategy he had hitherto adopted had not worked, in circumstances where, moreover, there was no reason to think that this strategy would work in future. He was realistic in his appraisal, securely founded in the materials before him, that any further attempt to enforce contact by force of law was almost bound to fail and, at the same time, be harmful to Q. He was, in my judgment, entirely justified in concluding that a further hearing, with or without a section 37 report, was most unlikely either to tell him anything he did not already know or to bring about any change in parental attitudes. He was sensible in thinking that therapy might achieve what all previous interventions had failed to achieve and justified in deciding that this was the best way forward. It was, after all, something that had been recommended in the past by Dr CL. He was plainly entitled to accept the advice of the Violet Mechett Clinic, as commended to him by the guardian, and repeated by Dr JP more recently, that therapy required a cessation of the proceedings.

In my judgment, it is quite impossible for us to interfere with Judge Brasse’s decision. He was entitled to decide as he did and for the reasons he gave. Indeed, I would go further: I suspect that if I had been where he was I would have come to precisely the same conclusion.

In my judgment, in deciding to proceed as he did, Judge Brasse was acting well within the latitude afforded him by the principles explained in Re C (Family Proceedings: Case Management) and he did not offend the principles set out in Re C (A Child) (Suspension of Contact). His decision to proceed as he did was not premature. He was not abdicating his responsibility to do everything in his power to attempt to promote contact. He was not abandoning the ongoing judicial duty to reconstitute the relationship between Q and his father. He was engaging with an, albeit non-judicial, method which he hoped might prove effective where merely judicial methods had failed. The very terms of his order, as I have set it out, show that he contemplated a future role for the court. I reject the complaint that there has been a breach of either Article 6 or Article 8.

It was for these reasons that I agreed with my Lords that the appeal had to be dismissed.

I would not want the mother to think she has won. She has not. There are no winners here, only losers. Q is far and away the greatest loser – and that, in overwhelming measure, is because of his mother’s behaviour. I urge her again, as I urged her during the hearing, to reflect on Judge Brasse’s findings. They are an indictment of her parental failings hitherto. She, and Q, now stand at the cross-roads. It is vital, absolutely vital, that she participates, with Q and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. Sooner or later, and probably sooner than she would hope, Q will discover the truth – the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.

I agree.

I also agree.