This judgment is being handed down in private on 27 February 2003. It consists of nine pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Royal Courts of Justice
Strand, London WC2A 2LL
Before:
THE HONOURABLE MR JUSTICE SUMNER
Between:
Ian P
Applicant
- and -
Norma B
Respondent
Mr Geoffrey KELLY (instructed by Larcombes Solicitors) for the applicant
Miss Lucinda DAVIS (instructed by Andrew & Andrew Solicitors) for the respondent
Mrs Susan Young for CAFCASS
Hearing dates: 10 and 11 February 2003
Judgment
Mr Justice Sumner:
Introduction
In July 2002 I started to hear two separate applications by fathers for specific issue orders. They concerned their daughters who were living with and being looked after by their mothers. The point in common to both applications was that neither of the mothers would agree to provide any form of immunisation for the children who were respectively 10 and 3 years of age.
The hearing went part-heard until December 2002. On that occasion it became apparent that the hearing would have to be adjourned once more for one of the mothers to obtain a psychiatric report. The applications came back before me in February 2003.
During the course of that hearing I learned that in one of the cases the mother had in August 2002 stopped contact. It had been continuing for some time by the father to their 10 year old daughter. As the matter was coming back before me in February, and with the consent of the parties, I suggested that this issue might be appropriately considered at the same time.
I was not aware at the time of the considerable history well set out in a chronology before me. I did not know that Her Honour Judge Davies had been dealing with the matter regularly in Portsmouth. Had I done so I would have been most reluctant to have allowed the issue to be listed before me.
In the event the application came into my list on 11 February 2003. By then I had seen two bundles of documents totalling over 600 pages relating to the question of contact. Contact had stopped for six months. I resolved to hear the matter if I fairly could although the mother was not present.
The background
For present purposes I shall do no more than highlight certain of the specific matters that have arisen over the years. The history is remarkable in its length and the strength of the feelings to which it gives rise even in courts which are familiar with such situations. The more recent events represent my findings of fact.
The father, Mr Ian P, is 40 years of age. The mother is 32. They met and started a relationship in 1989. It followed shortly after the release of the father from prison, He had been sentenced to a total of two years for attempted rape and indecent assault in respect of girls of 10 and 11 years of age. The mother was soon aware of this in general terms.
The parties started cohabiting in Portsmouth and then moved to High Wycombe. Their daughter C, the subject of this application, was born on 3 October 1992. She is thus 10 years of age. They separated within a month or two. The mother returned to Portsmouth.
There was regular contact for the next four years. The mother then became aware that the father had started a new relationship with SJ, now his wife.
The mother refused contact. The father started proceedings seeking a residence contact and parental responsibility orders in July 1997. Since then the father has had a further four children, two girls and two boys, the last child being born in November 2002.
There is a long history of the father’s attempts to obtain contact, then to ensure that it was both regular and unsupervised. I calculate there to have been in excess of 60 directions and orders by the court.
In essence the mother has not trusted the father since his present relationship began. She has strong negative feelings about him. She believes that as a Schedule 1 Offender he is a threat to C. The combination of that and her own personality difficulties has resulted in this awful record of court appearances.
The situation has not always been helped by the father. He has shown remarkable persistence in ensuring a relationship with C; he has not always taken into account the profound difficulties which the mother has.
Present dispute
The present position is that after contact appeared to have been going reasonably well on a fortnightly basis in the summer of 2002, the mother brought it to an end in August. It has not resumed.
The mother did so because she says that the father acted inappropriately with C on one occasion. He apparently made a remark to C who had gone to speak to friends during contact with her father. It was to the effect that she should stay with him. How the mother knew about this is not clear. She has given two accounts which do not tally in detail.
On another occasion in January 2002 he took her to have her eyesight tested without notice. The mother was very concerned about this as the immunisation dispute had not been resolved.
The father does not accept that he has acted inappropriately. He does accept that he took C to the optician without prior notice. He says there was good reason. The mother would not take her and this was necessary.
The experienced CAFCASS Reporter, Mrs Young, has been involved since January 2001. That continuity has proved valuable.
Before me was her latest report of January 2003. She had ascertained C’s wishes. They were to have monthly contact with her father. This was opposed by the mother.
Unhappily the mother did not attend the hearing. Her instructions however were clear. Contact should not resume. Miss Davis on her behalf applied for the application to be adjourned. She had learned that day that the mother was attending an urgent housing meeting. The mother had routinely turned up to court hearings before that.
I considered it was a drastic step by the mother to stop contact. The issues which led to it were relatively minor. There had been a long delay. C at the age of 10 wanted contact to restart. I was minded to continue with the hearing. I was supported in this by the positive recommendation of Mrs Young from whom I heard. I also heard shortly from the father.
The hearing
CAFCASS Reporter
I heard evidence from Mrs Young. She knew from her involvement that the mother found it very difficult to move forward. She had been recommended to take counselling but to her this meant that she could not cope. That was not something she could accept given the feisty and independent nature.
She recommended contact monthly at first. It should revert to once every two weeks after five or six months as it had been in summer 2002. She considered a penal notice to be counter-productive. C was becoming independent of her mother and was herself strong willed and opinionated.
She accepted that C had a good relationship with her half-siblings and that it was a great attraction. Contact was crying out for a routine. As she put it succinctly, the problem was the mother’s attitude and that the father was less than perfect. She felt there was a breakthrough when on an occasion the mother was threatened with a penal notice. The mother then did say that she would put C’s interests first.
That was in September 2001. It had led to a sequence of consent orders whereby contact increased until it broke down in August 2002.
She felt that the father thought impulsively at times. She considered that stopping contact was not in C’s best interests but the effect on the mother had to be taken into account.
Father’s evidence
I heard the father in support of his application. He denied the incident which the mother alleged in August. He said he had given some notice to Ms B which she did not remember about the opticians. I was in some doubt about this, though I accept he did it to help C not to annoy the mother.
He said that he got on well with C, She loved being the oldest and being in charge.
Submissions on behalf of the mother
In her sensitive final submissions Miss Davis pointed out the considerable stress under which the mother had been. She was presently taking anti-depressants. She referred to all the litigation of which the father was the author.
On two occasions he had applied for residence orders. On one occasion he persisted with his application for some eight months after it was clear that this would traumatic for C. He had brought proceedings in relation to immunisation and in relation to the change of C’s surname.
A time had been reached when it had to stop. The mother is unable to cope with what she regards as the father’s constant undermining of her. She may have a rigid personality and be profoundly distrustful. It was not helped however when the father refused to produce car documents on one occasion after he had undertaken to do so.
He must have understood how upsetting his action would be in taking C to the optician would be for the mother. He is capable as Mrs Young agrees of winding the mother up. Given all the pressures on the mother it was difficult to see how contact can be successful in the future. With her personality and her deep distrust, it is all too easy for her to be undermined. She is someone to be understood not condemned.
Finally, Miss Davis pointed out that the mother has always said that C wishes to see her father but she is very close to her mother. It was observed at the new school to which C went in September.
Adjournment of the case
During the submissions of Mr Kelly for the father in answer and in the light of what he was saying, I asked Mrs Young some further questions. It seemed to me that it was crucial to break the long cycle of court hearings over contact.
There had been two psychiatrists’ reports in 1999. One was from an adult psychiatrist Dr Falkowski and another from a family psychiatrist, Dr Hertzog. They both said that the father was no longer a risk to young children. It was not in dispute that the mother was still unable to come to terms with this and her distrust of the father.
I saw in particular in Dr Hertzog’s report echoes of the mother behaving in very much the same way three years ago as she is now. Little if anything has changed. I refer to passages in her report of April 1999 and her conclusions and recommendations.
“It would have been greatly to Norma B’ benefit if she had been able to enter into a therapeutic relationship in order to work through some of the anguish that she must have felt. The stress of the situation and the knowledge that she, herself had, as she undoubtedly viewed it, been betrayed, would have undermined her parenting skills as well as her self confidence and self esteem. It is extremely painful for women to face the reality that the natural father of their child or children is no longer committed to them in an affectionate relationship and difficult for them to interpret that the father may, in fact, be committed to the child. Mr P in his discussions with me has pointed out how Norma seemed to have changed from the caring person that he remembered to somebody who is somewhat bitter and lacks warmth.”
“Norma B cannot display her love for her daughter in emotional demonstrations but very much more in what she can make available to her. It was amazing to see the quantities of beautiful toys and games that C has been given. She also shows undue concern for her health and has felt that in no way could she let her go to school when she has any minor problem of infestation. The discussion of nits with the school and the fact that such on-going problems have been the reason/excuse Norma B has used in not allowing C to attend school, is all too obvious.”
“The example of the Easter egg serves to show the minor difficulties that occur and which Norma B focuses on in the course of her on-going bitterness. It is unfortunate that C’s mother has never been able to work through what are justifiable grievances, partly because her psychic pain has been so deep. The court will appreciate how saddened this mother is at the loss of her partner two years ago.”
“Norma B is so caught up in the misery of rejection that she presents as almost delighting in finding further issues to criticise including Mr P’s car, the question of it being taxed and insured. Any efforts he tries to make regarding presents, help over school attendance etc are regrettably seen in a negative light.”
“Conclusion.
In the course of my assessment of the overall situation, several issues have become clear:
i) Ian P’s Schedule 1 offences in the past under another name, are not considered by several experts to pose a threat and need to be put in the context of acts committed in his youth, following early sexual abuse, for which he served a prison sentence and which he has worked through.
ii) Norma B learned of these offences in 1994 or possibly earlier, through social services. It is likely that Mr P had not made the details about which she was entitled to know, very clear. Nevertheless, she continued her relationship with the father of her child, C P-B for another 2-3 years, with awareness of his past history, though possibly not adequate insight and understanding of what had transpired.
iii. c) Thus, it seems evident that Norma needs help to overcome the resentments that have developed out of genuine grievances and the devastating loss of a partner who was, and is, the father of her only child. My professional view is that psychotherapy or supportive counselling are crucial in helping this isolated mother, though it is acknowledged that any professional undertaking such work would encounter entrenched resistance.
f) I envisage that the aim should be for C’s contact to be unsupervised and more frequent but I share with the court my lack of success in working out acceptable hand-over arrangements. I am convinced C needs increased contact and that if her father could meet her from school then a possible 1½ hour contact period once a week would enrich her life. I have discussed the possibility of Norma’s brother Roger, assisting with hand-over but Norma refutes this totally.”
I accordingly discussed with Mrs Young the question of whether the time was yet right for the mother to be able to consider therapy or some other assistance and support in understanding C’s wishes. This may be for instance through a child psychiatrist. Mrs Young considered that, given that she has a good working relationship with the mother, it might be better for her to see the mother on two occasions to explore this with her. She felt it appropriate for contact to take place on perhaps two occasions at monthly intervals whilst this was ongoing. At a late hour it was resolved that this is how the matter would progress.
Miss Davis was without instructions but was generally in support to the extent that her present instructions permitted this. Mr Kelly was understandably cautious. He was concerned initially that Mrs Young would be doing work with the mother. I suggested that he might wish to have a few days to consider the position with the father before I made any final decisions.
Accordingly I gave the parties until midday on 14 February for them to make further submissions in writing. They were content to accept this.
Further submissions
Mr Kelly in his further submissions accepts that that Mrs Young should explore the mother’s willingness to under-go treatment. However, that is not a reason to why contact should not continue. It should be in accordance with the draft order he prepared on 11 February.
He then set out shortly the reasons he relies on in support. In brief he relies on the evidence of Mrs Young. The optician incident happened as long ago an January 2002. The mother has given two different versions of the other incident. C’s wishes are clear. She cannot wait at the age of 10 for the mother to accept that she is entitled to a relationship with her father, one that despite her loyalty to her mother she wishes to have.
Regrettably Miss Davis was not able to obtain further instructions. Attempts by her solicitors to contact the mother including two visits to her home have been unsuccessful.
Conclusions
I am in no doubt that it is in C’s best interests for contact to resume with her father. I am not persuaded that there was any sufficient justification for the mother to stop it. C wants it to continue and I give weight to her views for two reasons in particular.
44, First, she is of an age when this is appropriate and they have been expressed to a CAFCASS Reporter she knows well. Secondly, it required some determination to express her views given her clear loyalty to her mother and their close relationship. I add to that her close relationship with her four half siblings one of whom she has yet to meet and the submissions of Mr Kelly which I accept.
I accept the draft order. The father’s wish expressed in the draft order not to worry the mother for the next year about staying contact is helpful.
I have considered the question of a penal notice. It is understandably sought. I agree with Mrs Young that to have it hanging over the mother whilst she is discussing matters would be counter-productive. But contact will re-start, the start date to be suggested by Mrs Young but in any event within one month of this order.
If contact does not take place the father may apply for a penal notice. Given my knowledge of the background and with the consent of the parties that can be on written application with submissions by both parties and if possible the views of Mrs Young.
I make one amendment relating to the frequency of contact. It will be once a month until Mrs Young has seen the mother on two occasions or two months from today, whichever is the sooner. Thereafter it will be once a fortnight. I do not see that this is a frequency which is too much for the mother or other than is suitable for C. I have resumed the pattern of summer 2002 rather earlier than Mrs Young recommended.
There is no need for this matter to come back before me unless the parties or in particular Mrs Young consider this appropriate. Other than the immediate outcome of this judgment, all further applications should be listed before Judge Davis. I shall order a transcript of this judgment at public expense in case this is helpful.