G (Children : Intractable Dispute)

This appeal concerns two children, Gina (11) and Frances (8), as I will call them. They live with their mother, who separated from their father six years ago. Since then, they have seen very little of him, Gina’s last contact being in 2014 and Frances’s in 2016. For this state of affairs the father blames the mother and the court system. HHJ Handley, sitting in the Family Court at Northampton on 2 July 2018, did not agree. At the end of proceedings that had been running continuously since the parents’ separation, he refused the father’s application for orders that the children should live with him or have contact with him and prevented him from bringing further applications without permission for three years. He found that the father himself had become the leading author of what is on any view a great misfortune for these children and their parents. The father now appeals.

The parents, now in their 40s, lived together for some years but separated in May 2013, when the mother left the family home with the children and went to her parents’ home. Until then the children, aged just 5 and 2, had enjoyed a good relationship with their father. The mother had been prescribed anti-depressants from the time of Gina’s birth, and she remains on a high dose.

In the month of the separation the mother applied for injunctions and for a residence order. She made allegations of domestic abuse against the father, consisting of sexually inappropriate conduct, controlling behaviour, verbal abuse, shouting and swearing at her in front of the children, throwing food at her, kicking the dog and shouting and swearing at the oldest child. The father made partial admissions but said other allegations were exaggerated. He nonetheless did not oppose a non-molestation order and agreed to move out of the home.

Since that time there has been uninterrupted litigation about the children and other matters, so much so that the papers before the Judge filled thirteen files. For the purpose of this appeal it is only necessary to chart the main features of the sad history. I shall do so in three stages: May 2013 to July 2015; July 2015 to April 2017; April 2017 to date.

By the end of May 2013, the father had seen each child once, but the mother was only willing to agree to further contact through the court proceedings. A section 7 report was prepared by the local authority. In November 2013, the court ordered weekly indirect contact for three months with weekly Skype contact to follow, and it set up a fact-finding hearing. Between January and May 2014, work was undertaken with Gina by the school nurse in which Gina was expressing her wish to see her father and saying that her mother was stopping it. Face-to-face contact then took place in March and

Meantime, in February 2014, the father himself applied for an order that the children live with him. Marking the exceptional difficulty of the situation, the children were made parties in March 2014.

In August 2014, a fact-finding hearing took place before HHJ Waine. He heard from both parents and formed a favourable view of the mother and an adverse view of the father. He also relied on two section 7 reports which had by then been undertaken and found that they contained relevant matters. He made adverse findings about the father and rejected his claim that the reporter had been in collusion with the mother. He made an order for supervised contact and directed an assessment of Gina, to be conducted by Dr Jo Stevenson, a clinical psychologist. Her report, produced in November 2014, recommended further assessment of the family.

The father then pursued two complaints against the author of the section 7 reports, which were upheld by the local authority after an independent review which found amongst other things that the reporter was biased, knowingly included untrue information, and accepted the truth of the mother’s allegations before the fact-finding process had taken place. An injustice had been caused to the father for which financial compensation should be considered.

Supervised contact with Frances took place twice and with Gina once at the end of 2014 but failed on other occasions before funding ran out.

The father’s appeal was heard by this court, but not until 29 July 2015. The appeal was allowed: P-G (Children) [2015] EWCA Civ 1025. Giving the main judgment, Ryder LJ said that the judge’s reliance on the discredited section 7 reports created “a strong prima facie perception of unfairness”. The findings were set aside and the court noted that even if the allegations had been upheld, they might well not have operated as a bar to contact. The matter was remitted to a different judge with the observation that a separate fact-finding process was unlikely to be necessary.

So the success of the father’s appeal led to the setting aside of the findings of fact and the discouragement of a split hearing in a case of this kind. I do not believe that this court discouraged the making of any findings of fact at all about the mother’s unresolved allegations, still less was it ruling on their truth or suggesting that they could lightly be dismissed; rather it was doubting whether any findings that might be made about them could be conclusive.

Following the appeal, the case was allocated to HHJ Handley, who has since then provided complete judicial continuity. He immediately made a number of case management and interim contact orders. However, the father refused to attend supervised contact on the basis that it was unnatural and he did not wish to expose himself to another professional who might “stab him in the back”. This stance continued even when the Guardian told him that Frances wanted to see him. Eventually

After the appeal hearing, the father applied successfully for the replacement of the Cafcass Guardian. Then in November 2015 he applied for the discharge of the replacement Guardian, and this was granted on the basis that a position statement filed on her behalf had referred to a meeting with the father that had not taken place. There was by now a complete breakdown in the relationship between the father and Cafcass. A caseworker from NYAS was appointed to be Children’s Guardian.

In February 2016, a section 37 report was ordered from the local authority following continued allegations by the father that the children were at risk of emotional harm in the mother’s care. However, the father himself refused to engage with the local authority due to their previous involvement. The report concluded that the mother was committed to contact and criticised the father for not recognising the emotional harm to the children caused by his ignoring their wishes and feelings.

Also in February 2016, the father appealed from the Judge’s refusal to recuse himself and for NYAS to be discharged. Permission to appeal was refused by Cobb J in June 2016.

In June 2016, the father attended the children’s sports day. Gina was upset, but Frances enjoyed seeing her father. He then agreed to attend supervised contact and one successful occasion took place in August. This was followed by two unsuccessful occasions in September 2016, when Frances became very distressed. She has not had contact with her father since.

At the end of 2017, a refreshed criminal records search (which the father had opposed) showed that he had been convicted of harassment of another woman in the summer of 2015 and had been made the subject of a restraining order; that in May 2016 he had been fined for a breach of that order; that in October 2016 he was conditionally discharged for another breach; and that he had appealed that conviction and his sentence was increased to a three-month community order and an indefinite restraining order.

Judge Handley conducted a ‘final’ hearing in the family proceedings on 3-6 January and 23 February 2017, with judgment given on 24 April 2017. The main applications before the court were the original cross-applications from 2013 and 2014, and the father’s application for a further psychological assessment by Dr Stevenson. That application was opposed by the Guardian, who supported the mother’s application for a final order on the basis that the proceedings had been protracted and the children had suffered as a result.

The Judge preferred the father’s case. In a reserved judgment, he reminded himself that the children have a right to a full relationship with both parents and any restriction on that requires good welfare-based reasons and the exhaustion of all other options. He also considered that the effect of the Court of Appeal decision was that the events complained of by the mother “did not happen and they do not form part of this case.” He was critical of the Guardian for inaction in late 2016 when direct contact had broken down.

The Judge made these findings:

The Judge therefore granted the father’s application for a further assessment by Dr Stevenson. This was in due course extended to an assessment of the whole family at the Guardian’s request. The father gave an assurance that he would participate.

Since the April 2017 judgment a different NYAS caseworker has acted as Guardian. The father has made numerous unsuccessful applications for his removal and has threatened to report him to the police for harassment or to sue him if he makes any contact with him. The relationship between the father and NYAS has completely broken down, as did his relationship with Cafcass, to the point (unprecedented in my experience) that HMCTS has had to act as a middle man for the transfer of documents between the father and the Guardian.

The relationship between the parents themselves improved briefly after the April 2017 judgment but by April 2018 the mother was applying for a s.91(14) order preventing further application by the father without the leave of the court.

It was in this context that Dr Stevenson was re-instructed. Her assessment, complicated by difficulties in the father’s approach, was completed in March 2018. Her conclusions were as follows:

The matter came before HHJ Handley for final hearing on 23-27 April 2018, with judgment being handed down and orders made on 2 July 2018. All parties were represented by counsel. Evidence was heard from Dr Stevenson, the parents, the deputy head of the children’s school, and the Guardian.

The Judge gave a careful judgment. He introduced the background, and particularly the events since the April 2017 hearing. He summarised the parties’ positions. He once again outlined the law. He considered the delay that had occurred and the reasons for it, but he said that was not assessing the case as at 2013, or at any other date than 2018. He rejected the father’s complaint that his rights under Articles 6 and 8 had been breached. He placed full responsibility for the father’s difficulties with the current Guardian upon the father.

The Judge thoroughly summarised Dr Stevenson’s evidence. Although the assessment had been directed at his own request, he found that the father was “at best, a reluctant volunteer when it came to the issue of his own assessment” and that he had “sadly… not been able to prioritise the needs and the welfare of the children in the context of the family-wide assessment.” He noted that the father “maintains that all the blame and responsibility rests with mother and that when this case is viewed in its totality, there is no need for him to change because he has done nothing wrong, a position which, in my judgment, demonstrates little if any insight into the concerns of the professionals.” The Judge found Dr Stevenson to be an impressive witness who gave measured and child-focused evidence.

Having heard the mother, the Judge accepted that, whilst she had struggled to accept the findings made in 2017, she now accepted them. He further accepted her evidence that she will support the children to have contact that accords with their wishes and feelings and which meets their welfare needs.

As to the father, the Judge accepted that, like the mother “he loves his children dearly”. The Judge acknowledged that events earlier in the proceedings had contributed to the father’s sense of injustice and continuing mistrust of professionals. Having said that, he reflected on the father’s evidence and made the following observations:

Finally, the Judge summarised the Guardian’s opinion that there was no evidence to support the father’s allegations of parental alienation but clear evidence that he had a preoccupation with ongoing litigation. The Judge found the Guardian’s evidence to be balanced and measured and his recommendations to have been carefully considered, well-reasoned and supported by the evidence.

Turning to his conclusions, the Judge firstly noted that all parties were in agreement that indirect contact was not working in this case; indeed in Dr Stevenson’s view it was not only unsuccessful but had fuelled conflict. He then summarised his findings:

In consequence of these findings, the judge granted the original application made by the mother and dismissed that made by the father.

The Judge then considered the mother’s application, supported by the Guardian, for a s.91(14) order, first directing himself as to the legal principles. He reviewed the “exceptional” history and noted that the children “have been involved in acrimonious proceedings for some five years, have had no less than four guardians or case workers, and have been seen by professionals on countless occasions.” Whilst he accepted that not all of the delay could be laid at the father’s door, he noted that there had been no fewer than twenty-seven interlocutory hearings since the Court of Appeal decision and that a number of the father’s applications demonstrated that his “almost immediate response to any grievance or concern is to issue a C2 application… [and] unless restrained, father will maintain that approach with application after application.” In conclusion, he found the order sought by the mother and the Guardian necessary though draconian and concluded that three years was a proportionate duration. He also dismissed three further applications issued by the father since the April 2018 hearing.

The resulting order contained:

The father’s application for permission to appeal was considered by Williams J at an oral hearing on 14 December 2018. By his subsequent order of 22 January 2019, he granted permission to appeal and transferred the matter to the Court of Appeal pursuant to Family Procedure Rules 2010 r.30.13, which provides for the transfer to this court of an appeal for which permission has been given by a county court or the High Court on the ground that the appeal raises an important point of principle or that there is some compelling reason for the Court of Appeal to hear it.

Since the order, the father has issued six applications for permission to make an application. Five have been dismissed by Judge Handley and one, concerning schooling, has been allowed.

This abbreviated summary of the history is sufficient for the purposes of the appeal, but it comes nowhere near to conveying the incessant level of attrition that has characterised this case. Since the appeal in July 2015, the father has issued some fifty-six applications and Judge Handley has made approximately fifty orders. For example, since NYAS was appointed in November 2015, the father has made eleven applications to discharge the Guardian or to remove NYAS and four applications for Judge Handley to recuse himself. There have been about thirty hearings across forty days. The strain of such bitter and incessant proceedings on the parents and children has been huge.

We have had the benefit of submissions from Ms Siân Smith for the father, Ms Cleo Perry and Mr Andrew Powell for the mother, and Ms Hannah Gomersall for the children. We thank them all, and particularly Ms Smith, who has represented the father pro bono at the 2015 appeal and at all main hearings since. Her commitment, in all involving no less than sixteen days in court plus a telephone hearing and an advocates’ meeting, is in our view quite exceptional.

In her skeleton argument, Ms Smith has grouped the grounds of appeal drafted by the father into four strands, which I paraphrase:

Ms Smith argues that the orders should be set aside and the matter remitted for rehearing by a High Court judge, with all options for the children remaining open. Taking each strand of the grounds of appeal in turn, she submits that:

For the mother, Ms Perry and Mr Powell submit that:

For the Guardian, Ms Gomersall accepts that the father suffered unfairness in 2014, but that this was remedied by the 2015 decision of this court. Since then, the Judge prioritised the case and case-managed it in a fair and timely way. Most of the delay has arisen from attempts to explore all avenues to contact and as a result of the way in which

Before stating my conclusions about this appeal, I record that (like the Judge) this court well understands the distress felt by any parent who is unable to enjoy a relationship with his or her children. In this particular case, we are also fully aware that the father has legitimate grounds for dissatisfaction for the events that led to the discharging of the first two Guardians, and perhaps the third. We are also very conscious of the stress that these proceedings have caused to both parents and to the children. This is exactly the sort of history that repeated initiatives, before and since the advent of the Family Court, have aimed to avoid.

The governing principles in proceedings of this kind are, of course, the welfare principle, the ‘effect of delay’ presumption, the parental involvement presumption, the overriding objective, and the parties’ rights under ECHR Articles 6 and 8. In the present context, they have on many occasions been gathered together in authority of long standing, as for example by Black LJ in J-M (A child) [2014] EWCA Civ 434 at [25]:

This clear guidance is echoed in the presumption in s.1(2A) Children Act 1989, introduced in October 2014, that unless the contrary is shown the involvement of a parent in the life of the child concerned will further the child's welfare. But by s.1(6) the presumption does not apply if involvement would put the child at risk of suffering harm.

So the presumption of parental involvement is very strong, but it is not absolute. As in all matters relating to the upbringing of a children, welfare prevails.

Next, the substantive link between delay and welfare is so clearly recognised that the presumption at s.1(2) that delay is likely to prejudice the child’s welfare is preceded

A thorough analysis of the Convention requirements that are engaged in these cases can be found in Re D [2004] EWHC 727 (Fam) at [26]-[35]. That was a case where a “wholly deserving” father had been denied contact for five years, a situation for which the mother was “wholly responsible”. Munby J reviewed a number of decisions of the ECtHR, but for present purposes it is enough to recall what was said in Glaser v United Kingdom (2000) 33 EHRR 1 at [66]:

Where delay has a direct and adverse impact on a party’s position, a breach of the procedural aspects of Article 8 may be found. That is what happened in Re A (Contact: Human Rights Violations) [2013] EWCA 1104, [2014] 1 FLR 1185, where McFarlane LJ said this at [53]:

“The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court's powers, which is likely to be effective as opposed to ineffective.”

In that case an “unimpeachable” and “irreproachable” father was not given “a timely and effective process in circumstances where there was no overt justification for refusing contact other than the intractable and unjustified hostility of the mother.” The failure was of such a degree that it amounted to an unjustified violation of the Art. 8 rights of the father and child. [65]

The judgment in Re A contains important guidance at [60] about the need in a potentially intractable case for judicial continuity, effective case management and timetabling, a judicially set strategy, consistency of approach and a predetermined willingness to enforce orders.

So the procedural question on this appeal is whether the history of these proceedings shows an unjustified failure by the court to deal diligently with the proceedings in a timely and effective way to such a degree as to amount to a breach of the rights of the father and children. The substantive question is whether the Judge took all reasonable measures to promote contact before abandoning hope of achieving it at this stage.

Judicial decisions rest on a framework of facts that the court has found proved to the relevant standard. There is an obvious and important distinction between an allegation and a proven fact. It is the court’s task to decide what issues are sufficiently relevant to require investigation, and once it has selected an issue, it will either make a finding of fact about it, or it will leave it out of account when making its decision. What it will not do is to build its decision upon unproven disputed allegations, for that would create the “tottering edifice” described in the Darlington case [2015] EWFC 11 at [11].

Taking matters to the next stage, once facts have been found, they will form the basis not only for the judicial decision, but the approach of those who have to carry it out. So, a finding that a parent has or has not injured a child will be brought forward into the welfare assessments carried out by social workers. If those assessments take place before fact-finding has taken place, they may have to be premised on alternative outcomes. But either way they cannot treat unproven facts as if they were proven facts, and still less can they proceed on a factual premise that is inconsistent with the facts that have been found.

In Re B (Children) [2008] UKHL 35 at [2], Lord Hoffman memorably described the burden and standard of proof in this way:

“If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

This then is the conceptual framework under which the law operates in order to make the decisions that must be made. It requires the court to treat events as having happened or as not having happened. In most areas of life we do not operate in this binary way, but the law does so to achieve effectiveness, fairness and consistency.

In the present case, the court has made no finding either way about the mother’s allegations of domestic abuse. They had not been rejected or disproved but to the extent that the father disputed them they were not matters upon which the Judge was entitled

In every private law case, no less than every care case, the court must identify what the realistic options are. In accordance with the governing principles, it will do so with a marked preference for some options over others. In the present case, the theoretical options included one or more of the following (leaving aside the father’s suggestion that the children be placed in foster care):

The question here is whether the Judge sufficiently evaluated the advantages and disadvantages of such options as he regarded as realistic, and in particular whether he gave proper weight to the harm caused by loss of the parental relationship and to the evidence about Frances’s wishes and feelings.

Section 91(14) states:-

Guidance was given by this court on the proper approach to the exercise of this power in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR

In Re B (Section 91(14) Order: Duration) [2004] 1 FLR 871 Thorpe LJ considered an indefinite order of this kind in a case where there was no objective justification for deprivation of contact:

“It is very important where a child is effectively denied or inhibited from an ordinary relationship with her father by the determination of her mother to excise the father from her life that the court should never abandon endeavours to right the wrongs within the family dynamics.… In my judgment, the order… simply gives the wrong message.… This is not a case in which the father has in any way abused the family justice system to disturb or undermine the mother's primary care. The judge has specifically found that he has acted responsibly in pursuing his desire for an ordinary relationship with his daughter by contact applications… The prohibition needs, above all, to be compatible with the primary drive and objective of the court to restore the relationship.”

The outcome was that a two-year order was substituted for an indefinite one.

The question is therefore whether the order made by the Judge was justified at all, and if so whether it was for an appropriate length of time.

Having set out the facts, the arguments and the applicable principles at some length, I can address the questions that arise on the appeal quite shortly.

In the first place, making all allowance for the father’s legitimate complaints about matters that led to the first appeal, I conclude that there has been no breach of the Article 6 or 8 rights of the father or the children by virtue either of the absence of contact or the length of the proceedings. In reaching that conclusion, I consider the detailed chronology and then stand back to survey the whole course of the proceedings. Although their length is of itself a matter of concern, that does not of itself amount to a rights infringement. What is more relevant is that since 2015 the Judge has diligently and sympathetically attempted to revive the father’s relationship with his children but has been forestalled by the mother’s earlier lack of support for contact and by the father’s increasingly extreme attitude. The father’s self-description as “free of findings, risks or concerns throughout” confirms that he currently has little if any insight into his own difficulties. As time has gone on, his self-defeating stance has become the main obstacle to progress. To be clear, Art. 8 rights are not reserved for irreproachable parents, but a parent who is only willing to participate in the delicate work of family reconstruction on his own uncompromising terms cannot hold others responsible when the work does not succeed.

Nor do I accept the submission that the Judge’s decision was influenced by findings of fact that had been set aside. Given the unfortunate history, the Judge was alert to this issue and in both judgments he firmly stated that he treated the events as not having happened. The reports of Dr Stevenson and the Guardian do no more than record accounts of the history that the parents were fully entitled to give. Nowhere do the reporters assume the truth of these unresolved allegations or base their opinions upon them. The Judge was entitled to make no findings about them and, having done that, right to leave them out of his calculations.

As to whether the Judge pursued all reasonable routes available to him, it is important to understand what the real choices were. Most of the theoretical options listed above can be discarded. There was no gap in the evidence and no one argued for further assessment or further adjournment, which would have been a truly bad option in a case that had already been adjourned in 2017. Indirect contact had by common consent

The complaint that the Judge did not take relevant matters into account is not made out either. He repeatedly reminded himself of the importance of contact and he accurately summarised the children’s wishes as described by Dr Stevenson (see paragraphs 24(4) and (5) above). There is nothing inconsistent between his two judgments in their assessment of the parents in circumstances where the mother had reflected on her approach in the interval but the father had not. In particular, the Judge was fully entitled to accept professional advice that this was not a case of parental alienation. On his findings, the situation here can clearly be distinguished from cases such as Re D and Re A (above), where one parent was blocking contact and the other was blameless.

In the end, the Judge’s fundamental findings

Finally, this was an obvious case for a s.91(14) order in the light of the Judge’s findings and the terrible litigation history. The mother and children are entitled to some protection from incessant litigation and the length of the order is not inconsistent with the possibility of a therapeutic approach to the restoration of contact. Events since the order was made show that it is working fairly.

For these reasons, I would dismiss this appeal. In doing so, I express the hope that it may even now be possible for these children to re-establish their relationship with their father and to come to know him, not as someone who hates their mother but as someone who loves them and is prepared, even at this late stage, to show it by seeking the support that might lead to a better outcome.

I agree.

I also agree.