A & B (Children)

Making contact happen and, even more importantly, making contact work is one of the most difficult and contentious challenges in the whole of family law.

The opening sentence of this judgment (in §1 above) is borrowed from the speech of Baroness Hale in Re G (Children) [2006] UKHL 43; [2006] 2 FLR 629[2006] 2 FLR 629 §41. Time and again, that opinion is to be found throughout the library of family law reports, spanning very many years. Were it helpful to isolate a few other cases which contain that important message, I would select the judgments of Munby J (as he then was) in Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) [2004] 1 FLR 1226 [2004] 1 FLR 1226 and Sir Nicholas Wall in Re M (Intractable Contact Dispute: Interim Care Orders) [2003] EWHC 1024 (Fam), [2003] 2 FLR 636, Re O (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam), [2004] 1 FLR 1258 and Re R (Residence) [2009] EWCA Civ 358[2009] 2 FLR 819, [2009] 2 FLR 819.

This case, concerning two girls, namely A aged 12 and B aged 8, vividly illustrates Baroness Hale’s observations (above). Sadly, as will be apparent from this judgment, given the depth and complexity of the issues, and the polarisation of views within the family, the case has transformed from a dispute about contact to a more generalised battle in which the essential emotional well-being of the children is now, in my judgment, in peril.

The First Applicant (“F1”) is the father of A and B; he is in a long term relationship (since 1991), and civil partnership (since June 2012), with the Second Applicant (“F2”); when referring to them together I refer to them (as counsel did in the hearing) as “the men”. The First Respondent (“M1”) is the mother of the children. She is in a long term relationship (since 1985), and civil partnership (since April 2008), with the Second Respondent (“M2”); when referring to them together I refer to them (as counsel did in the hearing) as “the women”. Since 2006, both couples have lived close to one another (the men moving to the neighbourhood of the women to be on hand for them and the children).

For those wishing to trace the evolution of the case, it has been reported in the specialist law reports at two earlier stages of its fraught progression through the family courts: MA v RS [2012] Fam Law 13 (July 2011 judgment); Re P and L (Contact) [2011] EWHC 3431 (Fam), [2012] 1 FLR 1068 (December 2011 judgment). One further judgment, important in the evolution of the case, has been delivered in the meantime (unreported: 13 July 2012)

There is no way forward from here which does not involve the continuation of harm to the children, the risk of future harm, and/or inevitable loss to the children. The issue for me has tragically become one of balancing the risks of harm.

The immense challenge which confronts me now in trying to resolve this dispute has to be considered by reference to the fact that:

The magnitude of the problems adumbrated in §7 above are compounded by the fact that, as Hedley J found a whole year ago, contact had “broken down completely”, and now the situation is that:

That situation needs to be understood in the context (perhaps giving some understanding to the root cause of the current problems) that (as Hedley J found when he last gave a substantive judgment in the case in July 2012) the four principal adults (identified in §4 above):

“loathe the sight of each other, and are utterly indifferent to the suffering that they inflict on each other”.

He went on to say:

“The result of all this is that so deep is the loathing and so acute the walls of protection that they have built around themselves, that they have created the impression of total indifference to the effects that this protracted and far from unfinished dispute has, is and will continue to have on these two children ….”

In the same judgment, Hedley J further commented that:

“the whole thing has become next to impossible for any child, let alone two damaged children, to handle”.

It was then, as Hedley J rightly said an “intractable contact case”. Since that time, hard though it is to believe, the situation for this family has been “getting steadily worse” (Dr. Berelowitz).

There is no clear satisfactory course of action now. Dr. Berelowitz opines that “we are probably in the unfortunate situation in which there are almost no options left”.

That said, at this hearing each party advances options designed to achieve their objective; multiple cross-applications now need to be determined. The men apply for:

I venture to suggest that the proliferation of (and particularly the filing of repeat) applications in this case over the years have somewhat diluted their impact on the numerous judges charged with determining them.

For the purposes of making a decision at this hearing, I heard from Dr. R (Adult Psychiatrist), Dr. Mark Berelowitz (Child Psychiatrist), F1, F2, briefly from M2 (her evidence foreshortened by her mental health difficulties), M2 and the Children’s Guardian.

Identifying the problems is part of the challenge in a case such as this; identifying the solutions is by far and away the greater challenge. While noting the men’s primary position that “this case is, or should be, about the enforcement of an order for contact already obtained” and not, they say, about “court management of allegedly deep-rooted mental health problems or aversion to contact on the part of the women or the children” (Position Statement: 1.7.2013), I must profoundly disagree.

Contact, and its enforcement, cannot be looked at in a vacuum; the contextual picture, and history, is all-important.

This overly-long judgment represents my aspiration to distil into one document at least an outline of the multiple issues, arguments, and strands of evidence in order to make some sense of where we have got to, and where we should go now, and

The origins of the current acute problems derive from a period long before 2011. One would have to go back to 2005 or 2006 I believe. However, for the purposes of this judgment, I pick up the background narrative with the order of the 20 December 2011; it was then that Hedley J made the order for contact (principally in respect of B) which is the subject of the current applications.

The 20 December 2011 order made provision for B to spend one weekend per month with F1 and F2 (staying contact from Friday to Sunday), and one week’s holiday this summer (2013). An additional contact was to take place for the Civil Partnership ceremony of F1 and F2 in June 2012. For completeness sake, it is also to be noted that A was to consider herself welcome to the contact at any time.

There was also to be indirect contact between the men and both girls.

The December 2011 order did not produce the meaningful regime of contact as Hedley J had intended. B saw F1 and F2 in January 2012, February 2012 and March 2012. In March 2012, at the weekend contact, B and the men chose and bought L’s dress & shoes for the forthcoming Civil Partnership ceremony.

Contact did not occur in April 2012. Contact failed again in May 2012 – B apparently being tearful before the visit for the “first time”. In May, F1 issued an application for specific enforcement for the forthcoming June visit. Hedley J attached a penal notice to his order.

The contact in June 2012, for the Civil Partnership ceremony, did not occur.

In July 2012, Hedley J heard some evidence about the cessation of the contact. He principally found that “contact has now broken down completely” [B283], but declined to make specific findings about the reasons. Given the failure of contact even when a penal notice was attached, the Judge “deduced” that “any order of the court simply will not be complied with”.

I accept the undisputed objective evidence that contact, when it happened, appears to have been an enjoyable experience for the children (this is, I should make clear, disputed by the women). This was certainly the view of Dr. Cameron, Karen Woodall, Malcolm Hartley, Sue Hayward and the current Guardian (“I would suggest that it has been of a good quality”); my review of the large number of photo albums produced by the men bears this out. Hedley J endorsed this point; indeed, I share his view that “the men have something of a real value to offer to L in contact”. I further consider that, objectively viewed, there is no reason why the contact should not happen.

The failure of the contacts prompted Hedley J in summer 2012 to commission a report from Dr. Berelowitz to advise him; in adjourning to obtain that report, the Judge kept in place the contact order.

Once that report was available (see below for discussion of Dr. Berelowitz’s evidence) in November 2012, Hedley J proposed that the parties should engage in a period of “sustained mediation” as an alternative to court. The contact order was to remain in place in the meantime, and an enforcement notice was to apply from 1 February 2013 in the event that contact did not happen. Efforts to arrange such mediation were not uncomplicated. There was no agreement as to the frequency of the mediation; the men proposed weekly mediation, the women proposed monthly. There were some individual sessions (as I understand it) but joint mediation (as contemplated) did not happen.

In January 2013, M1 was admitted to psychiatric hospital with an acute stress reaction; she was discharged on 15 February 2013.

On 1^st February 2013, the contact order was re-issued with a warning notice attached to it (per Order of Hedley J of 17 December 2012).

Contact in February 2013 did not happen.

The proceedings came before Mr Anelay QC (sitting as a Deputy High Court Judge) in March 2013, and shortly thereafter, for further Directions before me. At that hearing I directed that Dr. Berelowitz should prepare a further report, seeing the parties (but not the children) if he considered that this would be helpful. He did consider it would be helpful for the purposes of an addendum, and accordingly appointments were set up. In the event, M1 did not see Dr. Berelowitz.

I ordered further periods of contact between B and F1 and F2. None of the contact visits which I directed actually happened. M2 gives accounts (in her final statement of evidence) of the events in the home on the appointed days. If the intention of her narrative was to demonstrate or explain that B had a genuine resistance to contact, then she has failed in that endeavour; M2’s narrative simply succeeds in re-inforcing the evidence of disorder of relationships and the distorted thinking in the women’s home.

In the period since December 2011, F1 and F2 have provided letters, birthday cards and presents (often generous) to the children; only once (so far as I can tell) has there been any (meagre) acknowledgement of this.

In the immediate lead-up to this hearing, there was a significant development. In June 2013, M2 unilaterally arranged DNA testing of the children; she sought to justify this by explaining that A was questioning the fact that she believed that she and B did not look alike. M2 sent off the samples. When the results of the testing returned, they appeared to show a >90% likelihood that the girls were not full siblings. M2 then told M1 what she had done. This was then raised with F1 and F2 (see below). As discussed below, this was then brought to my attention at the pre-trial review. I then ordered further testing involving the adults.

This all unfolded while Dr. Berelowitz was undertaking his further assessment. In June 2013, he delivered his addendum report. Having directed that the four adults should be seen by Dr. Berelowitz (if he wished to see them), I was concerned to note that M1 had not been to see him. This was apparently because M2 had made the unilateral decision that M1 should not do so. M2 had not even told M1 when the appointment was to be.

I conclude my review of recent history by turning to the children’s educational progress. It is important and gratifying to note that in spite of all the chaos surrounding them the recent school reports on the children are good.

This reflects good parenting in some respects: as Dr. Berelowitz rightly in my view observed “[M2] must be doing something right” (re-examination).

At this hearing, four issues predominated. I discuss them below:

At the pre-hearing review on 2 July 2013, I made a direction under section 20 of the Family Law Reform Act 1969 that there should be paternity testing of the children by an accredited body. In doing so, I indicated that I would give my brief reasons for that direction in this judgment.

The circumstances in which paternity testing arose are as follows.

On 21 June 2013, out of the ‘blue’, M2 sent an e-mail to F1and F2 in which she informed them that she had arranged for DNA tests to be undertaken on the two children, “the result of which indicates a 90% likelihood that they are in fact only half-siblings”. She added:

“Now that this issue has been raised, it is essential that paternity of the girls is properly established…”

M2 explained the reasons for her actions in her written and oral evidence.

Given that the issue had been raised in these proceedings, and specifically brought to my attention, it needed to be resolved; not to do so would, as Miss Jones rightly observed, leave us not discussing “the elephant in the room” at this hearing. Moreover, quite apart from the impact the results may have on the outcome of these cross-applications, I was conscious of the importance of clarity for A and B, a substantial question now having been posed (by M2 or otherwise) about their paternity (see Re T (Paternity: Ordering Blood tests) [2001] 2 FLR 1190). I therefore made the direction, identifying Cellmark as the expert laboratory to undertake the testing of the children and the three relevant adults.

The results of the paternity testing were originally scheduled to be with the Court by the second or third day of the hearing – this in itself was not ideal. In the event, the results were not available until part-way through closing submissions i.e. after the evidence had concluded, and the submissions in the main delivered.

The Cellmark testing revealed that F1 is indeed the father of A and B.

Having listened to the evidence on this issue with considerable interest, and growing dismay, I could not but conclude that this was a wholly misguided ‘last-ditch’ attempt by M2 to provide a knock-out blow to the men’s application to enforce their contact order. If that was not her main hope, she certainly sought in my view to stymie the forthcoming final hearing, intending that the hearing would have to be adjourned for several weeks to await the results. This was a course specifically proposed by the women in their position statement for the hearing (although sensibly not pursued by Mr Storey in submissions); they originally suggested that the DNA results would not be available for 2-3 weeks. Given the imminent vacation, they may have hoped that the hearing would have had to be put back by months.

This unhappy chapter of this sorry dispute raises very serious questions about the lengths M2 in particular will go to obstruct contact, involving – quite possibly to their knowledge – the children themselves. It further leaves unresolved (and laden with suspicion, I regret) how it was that the test samples apparently taken from A and B by M2, and submitted by M2, to ‘who’zthedaddy.com’ were returned with the “confident” result that it was >90% likely that the children were not full sisters. I am simply not able to resolve that issue, and resist the strong temptation to speculate.

The professional reaction to this event speaks volumes. Dr. Berelowitz commented that “I was thrown by this [i.e. the issue of the paternity of the children] … ‘gobsmacked’ … In cases I’ve been in of this kind I’ve seen people being pulled into behaving in a way which is uncharacteristic” adding the portentous words: “they will fight to the death over the children” (ev/ch).

The Guardian too indicated that she had been “shocked” by M2’s conduct in relation to the DNA testing of the girls. Indeed she said that this event had shocked her more than anything experienced since 1985 when she started “doing this job”. She was astonished that the issue of paternity had “never been raised before”, adding that “both conceptions had been very carefully planned; none of the adults or children had raised this with me”. She felt that A, as a very intelligent child, would probably “put 2 and 2 together” and work out what the sample had been taken for.

The issue of M1’s mental ill-health has not, it appears, assumed a particular significance in earlier hearings. At this, it was advanced strongly by the women as a reason why contact should not be enforced. The women sought (and I granted) leave to instruct M1’s treating psychiatrist to prepare a report and attend to give oral evidence so that I could examine this issue more fully.

The evidence reveals that M1 has endured mental health difficulties for a significant period of her life, probably since 1993 (when she was 28). For more than 10 years (i.e. since 2002), she has been treated by Dr. R, Associate Specialist in Psychiatry at the X Community Mental Health Team who prepared a helpful report on her and gave evidence.

Taking the evidence overall, I am of the view that:

Effect of M1’s illness on the children: I am wholly satisfied on what I have read and seen that M1’s illness has an impact on the children at some level.

These presentations would be likely to be absorbed by the children. They are indeed reported to have commented on M1’s ill-health and her heavy smoking. In the Guardian’s view:

“both children now worry about their mother’s mental health and well being. Initially it was only A expressing concern but on the last occasion I saw L she too expressed her worries. It is equally clear that they blame the court proceedings and [F1] and [F2] for this”.

Dr. R indicated in his report that the children had been (or would be) affected in one of three ways by their mother’s mental illness: “(1) by some of the things exposed to directly, (2) we know that children have a higher rate of psychological problems where parents have mental illness; there is a genetic component but otherwise we don’t know why… (3) extent to which the problems were being attributed to the men.”

This second point (para. above) was echoed by Dr. Berelowitz when he said that: “Children of parents who have mental health problems severe enough to require hospitalisation have much higher rates of psychological problems themselves than the rest of the population” (ev/ch). He added that if A and B have a genetic risk of mental ill health (which is possible – per Dr. Berelowitz) then “we should not add insult to injury by adding to the risks” (by exposing them to the inevitably conflicted atmosphere around the re-establishment of contact).

I have had the opportunity to assess the four adults. I, like Hedley J, was struck by the sense of mutual “loathing” which had apparently so infused the hearings before him (see §9 above). However, I felt that the passage of a year or more had created more of a sense of disconnection between the men and the women. Once friends, and collaborators in this wonderful endeavour of creating a family, it appeared to me that they have become to some extent strangers, harbouring strong feelings of mutual mistrust, and reciprocal aversion. As the first-hand experiences of each other (which at one time had been largely positive) had diminished to nought, so these had been replaced by odium.

Difficulties in the relationship between M1 and M2 fell under the spotlight at the hearing before me. Evidence of historic, and some recent, domestic abuse was laid before the court. Reference was made in the report of Dr. R to the fact that “[M2] confessed that she had been physically aggressive towards [M1] in the past”; this was explained as occasions when (according to M2) M1 had asked M2 to “slap her around the face … like in the movies” when M1 became manic. M2 said that this did not work. It also appeared that M1 continued to express fear (rational or not is not clear) of M2 (Dr Rl report - ibid.). This led the couple to have relationship counselling.

The evidence of recent domestic abuse was confirmed by the evidence of M1 and M2 themselves. The couple had recently argued about an e-mail which M2 had sent to “Dr. Berelowitz’s people” (according to M1); M1 had “thumped” (per M2) M2 on the arm in the car. M1 had had too much to drink at the time. The children had become upset. This was “some months ago” this year (I infer since 14 March when I made the direction for Dr. Berelowitz’s renewed involvement).

M2 referred to another (recent) incident (within the last school term) in this context when she had been physically trying to force M1 out of a car by “pulling her by the legs”; she failed. This story was volunteered in the context of domestic abuse; I sensed that I had not heard the full extent of this story.

F1 produced at this hearing an e-mail dated 18^th March 2011 written to Karen Woodall and Dr. Cameron reporting to them information which he had allegedly received anonymously, at that time, about M1 and M2’s relationship. It was not clear to me why this e mail had not surfaced earlier in these proceedings; given the distance in time from the event and the unsatisfactory manner of its production in these proceedings, I can attach little weight to its content even though (as it happens) it was ostensibly reliable and of a piece with other evidence.

What was apparent – and to some extent Mr. Tolson made good his submissions on this – was the fact that M2 has been shown to be considerably the more powerful in her partnership with M1, controlling M1 in many respects (see below). Given, in my finding, M2’s stronger antipathetic views of the men (and M1’s inability to stand up to M2 given her ill-health) this does not augur well for any form of future engagement or co-operation in re-establishing contact.

The children are, as they have been for some time, firmly resistant to having any contact (direct or indirect) with the men.

In her oral evidence (ev/ch), the Guardian described the “complete dissonance” between what B said to her about the men, compared with her presentation when she saw her with the men. In 2011, she had observed the handover and described B as being “at ease” with F1 and F2. As soon as she returned to the women “a light switch went off. It was really marked … it was like a different child”

Having found, as I do, that generally the contact itself is positive (see §26 above) there must be other reasons for the negative views of the children. As will be apparent (see below), I believe that the girls have aligned themselves very strongly with the women in a form of ‘folie a quatre’. The shared belief systems have been compounded by the girls experiencing a form of separation anxiety from the women when they leave for contact. Dr. Berelowitz’s evidence (ev/ch) on this point struck a particularly powerful chord :

“Having a mother who is repeatedly hospitalised can cause separation anxiety. This is one of the great traps in the contact dispute world; it’s about the ‘leaving’ not the ‘going’ for contact.”

This resonates with an earlier recording which I noted in a joint note of J and L (CAMHS) – namely that the main issue for B was “separation” from M1 and M2 rather than issues with F1 and F2.

The Court (both myself and Hedley J) has received expert assistance from Dr. Berelowitz in this case. He prepared a report (22 October 2012) for Hedley J, and an update (2 July 2013) for me. He has given oral evidence before me.

For the addendum report ordered by me, and at my request, Dr. Berelowitz met with M2 (not M1 – see above), F1 and F2.

The October 2012 report was based on a reading of the papers only – a course with a mix of identified advantages/disadvantages. Having done so, he found himself “feeling particularly dismayed on behalf of these children.” at their plight. He was particularly concerned about the failure of the adults to follow the advice which they had received in the case up to that point – a case in which “an extraordinary amount of high quality of advice had been given”.

On a review of the papers, Dr. Berelowitz formed the clear view that the men should accept a “modest role and don’t push the daddy business”; when he met them recently, it appears that this had been taken on board – in that he was able to report that “the men said that they’d accept a modest role” (ev/ch). He repeated this indeed in his second report; namely that “[the men] accept that they should play a modest role… a limited role”.

He had further advocated that the women should not “spurn” the opportunity for the children to have a relationship with their biological father; he however had to report that M2 (the only woman he met) was “absolutely opposed to them [the men] having a firm but limited relationship with the children” (Berelowitz). Indeed (per evidence in chief) her view was that the men “should have no role at all”.

Dr. Berelowitz gave powerful evidence about the adverse impact on the children of them growing up believing that half their genes are essentially bad/negative/destructive: “If the women just convey negative views about the men, the children end up with a ghastly image of how they came to be conceived. It is so grindingly negative.” (XX Tolson). This has an echo from case law (see Re L (Shared Residence Order) [2009] EWCA Civ 20 [2009] 1 FLR 1157 [2009] 1 FLR 1157 at §68 (Wall LJ)):

“Each parent represents 50% of L’s gene pool. Children, moreover, learn about relationships between adults from their parents. In 20 years time it will not matter a row of beans whether or not L spent x or y hours more with one parent rather than the other: what will matter is the relationship which L has with her parents, and her capacity to understand and engage in mutually satisfying adult relationships. If she is given a distorted view of adult relationships by her parents, her own view of them will be distorted, and her own relationships with others – particularly with members of the opposite sex – will be damaged”.

Dr. Berelowitz offered no clear solutions to this “extraordinarily difficult” case but pointed up that if he was to comment on any outcome which would involve the children, he could not do so without seeing the children.

As will be apparent from the opening section of this judgment, there are multiple applications before the court. As will be apparent from the section below my decision as to the way forward is driven by the paramount interests of A and B.

As Hedley J himself observed, court intervention and solutions are to some extent a little ‘ham-fisted’ to deal with problems as complex and nuanced as these. Put another way, the court process does not always prove equal to the task of dealing with such cases. It is in that context that I review the range of options which the parties have presented.

I propose to discuss the options in the order which best reflects their substance here:

Committal or suspended committal. The men have expressly applied for a committal order in respect of the women (or either of them), and identify 13 occasions when there has been a breach of the December 2011 order. That said, they have indicated (position statement: 12.3.13) that they have “no desire to see the mother and/or her partner committed to prison for contempt”; see also “it is not necessarily our intention to ask for the Respondents to be imprisoned, but rather to provide the court with every sanction and tool at its disposal to effect a change in behaviour by the Respondents and to ensure that contact is re-started immediately”. This was echoed in the oral evidence of F1.

The men allege that the breaches are demonstrated by the fact that contact has not happened as ordered in the period since the 20 December 2011 order. There has been a total failure of contact since March 2012.

I do not regard committal as the appropriate sanction in this case, for a number of reasons.

Financial penalty for breach of court order, and/or an order for costs: I take these issues together. As to the principle, I remind myself of the comments of Wall LJ in the case of Re T (Order For Costs) [2005] EWCA Civ 311 [2005] 2 FLR 681 at §56, namely[2005] 2 FLR 681

“those who unreasonably frustrate contact need to be aware that the court has the power to make costs orders in appropriate cases, and that the consequences of such unreasonable behaviour may well be an order for costs made against the resident parent who has behaved unreasonably”.

In this case, I do not entirely rule out making a costs order, but that time has not yet come. Hedley J himself held that “it may be that the court will have to revisit the principle of party and party costs orders… those are issues which will require careful thought in the future”. I propose to defer to the very end of this litigation examination of the extent to which the conduct of the protagonists overall (and over the years) has contributed to the current financial and emotional disaster for this family, and will then consider whether it can be said that any one party is guilty of “such unreasonable behaviour” that I ought to visit them with a costs or financial order.

In making such an evaluation, I would have to have regard to the financial resources of the parties. While I am not satisfied that the women would be unable to satisfy a costs order to some extent (I learned a little about their business, and its finances; they are about to enjoy a third holiday this year, at least two have been abroad, though they have told me about loans and re-mortgages), I must bear in mind that any financial penalty should not ultimately compromise the well-being of the children.

Discharge of the current order for contact (20.11.11); abandonment of attempts at contact: This is the option contended for by M1 and M2. Indeed, this option was fairly clearly signposted as a favoured outcome in the recent report of the Guardian for this hearing, when she said:

“the time is long overdue for proceedings to end, primarily because of the known negative impact on children of protracted court proceedings and [A] and [B] in particular, who have been so exposed. The deleterious effect it has upon the maternal household cannot be overlooked”.

The Guardian, went on expressly to say:

“Following my visit to the children I was left considering that the time had come for no further contact to be attempted and to let the children enjoy what was left of their childhood. This was on the balance of harm premise, as the long term effects upon [A] and [B] of not only being deprived of a relationship with their biological father but having such a negative view of him cannot be overlooked.”

It seems to me that I would only be right to adopt this option if:

In my judgment, it is in the interests of the children to have contact (see above). In reaching this conclusion, I simply echo the words of Hedley J:

“I do not for one moment believe that it is in the interests of these children to have any prospect of contact with the men severed in effect for the whole of their minority, which must at the very least be a serious risk inherent in doing nothing”

I am however pessimistic about ever restoring contact in a manner which could be in the interests of the children, and I am concerned that efforts to achieve contact are causing more harm to the children than the good which may come from a relationship with F1 and F2.

As will be apparent from my conclusions (discussed below), it is not in my judgment in the interests of the children that I should abdicate responsibility for them by authorising the abandonment of attempts at contact at this stage. It has been said (Re C (Residence Order) [2007] EWCA Civ 866[2008] 1 FLR 211 [2008] 1 FLR 211 at §26) that all too frequently judges are driven to that conclusion, which is why week after week fathers appear in the Court of Appeal protesting that the court has been powerless to enforce its orders, even though the “long-term damage to the child is perfectly obvious”.

I have to consider the resumption of any contact now in the context of a wider review of the children’s overall emotional well-being.

Section 11I, 11J, and 11K Children Act 1989. The men seek an order for enforcement of contact, requiring me to impose an unpaid work requirement on the women. Before making such an order, I would need to be satisfied beyond reasonable doubt (section 11J(2)) that a contact order had not been complied with; it would then be for the women to demonstrate (on the balance of probabilities) that they had a reasonable excuse for their failure to comply (section 11J(3)/(4)). I would also be required to be satisfied that the order is “necessary” (section 11L(1)) to secure the person’s compliance with the order. I would also need to be satisfied that the “likely effect on [the women] of the enforcement order proposed to be made is proportionate to the seriousness of the breach of the contact order.” I must also take into account the welfare of the child (section 11L(7)).

Such an order may well not be appropriate where it is the child who is refusing to co-operate (see Re L-W (Enforcement and Committal: contact) [2011] 1 FLR 1095, in relation to a child aged 11), and especially where the court is not satisfied that a coercive order against the adult would in fact generate any reversal in the child’s attitude.

On the facts of this case, I am not sure that I can satisfy myself that the order is ‘necessary’ to secure the women’s compliance with the order. ‘Necessary’ in this context, as in others means something between “indispensible” and “useful, reasonable or desirable” (see Re H-L [2013] EWCA Civ 655 §3), having the connotation of the ‘imperative’ rather than what is merely optional. I do not find that such an order would be something close to indispensible in achieving the desired result. Moreover, the children do now refuse to co-operate with the contact; I cannot conclude on the evidence that a coercive order against the women would generate any reversal in A and B’s attitudes. Indeed, I believe that it would have quite the contrary effect.

Focused attempts (constructive and purposeful intervention): Dr. Berelowitz rightly observes in this case that the adults have received “such rich and careful advice” in the past, yet have demonstrated that they feel under “no great obligation to follow this advice”.

Dr. Berelowitz rightly questions in my view “what right” the adults feel they have not to follow the advice. If their failure to do so is inability (rather than unwillingness), the couples – he opines – need psychotherapy.

My assessment is that the failure to follow advice in order to achieve a constructive intervention is largely due to the unwillingness of the parties, mixed with a smaller measure of inability.

I am satisfied from my review of the reports filed over the many years of this litigation, that constructive purposeful intervention has been attempted extensively in the past, orchestrated by Dr. Hamish Cameron, and from Karen Woodall; A has been seen by J (CAMHS) focusing on offering her psychotherapeutic support. The reports of these experts, together with their ‘Parenting Co-Ordination Plan’ (April 2011), tell their own tragic story of wasted endeavour.

This route is now (per Hedley J) “littered with rejected professionals”, whose advice has been for one reason or another rejected. I note that in her recent statement, M2 even suggests that Dr. Cameron and Karen Woodall were never impartial, they had a conflict of interest, with specific allegiances to F1: “clearly F1 has a relationship with Dr. Cameron which went outside the realms of this case”.

It has been suggested by F1 and F2 at this hearing that Karen Woodall, and the Centre for Separated Families, should be re-engaged. This organisation has experience in working through seemingly intransigent parenting problems through its ‘therapeutic bridging programme’; this programme includes a number of ‘treatment routes’ for resistant and rejecting children including a ‘reversal of residence’.

Ms Woodall, Director of the Centre for Separated Families (who gave evidence before me), spoke of the successful work of her organisation in achieving the restoration of fractured relationships between children and “alienated” parents. Her earlier work in this case, commissioned initially on the advice of Dr. Cameron, had concluded in March 2011; for present purposes, she had been provided with updated information in the form of the reports of Dr. Berelowitz, Dr. R, and the Guardian. She spoke of the “multi-stranded” approach to problems such as this, designed in a bespoke way for each individual case. While treating each case on its individual facts, the experience of her organisation had enabled her to categorise the provoking problems, and the solutions, which were set out in her written material (exhibited to F1’s witness statement).

Ms Woodall helpfully talked me through the process of assessments, review, decision-making, and ultimate determination of strategy for their work, and advised me on the costs.

I would not wish to cast doubt upon the valuable work which the Centre of Separated Families performs generally, but I was left unpersuaded that they could really help in this case for a combination of reasons:

Use of section 37 / section 38 CA 1989: This option was clearly seen on the ‘horizon’ (if not in the middle-distance) in July 2011, and in December 2011. It is now in the foreground.

Hedley J has already made findings (on two separate occasions) that P was suffering significant emotional harm “…as a result of the protracted and intense conflict between the four adults in her life”: see judgments of July 2011 and December 2011.

He considered care proceedings, but concluded that this would be “very unlikely to serve any useful purpose. There have been too many professionals involved already … it would be most unlikely to take the case anywhere”. The only circumstance in which he felt that it would be appropriate would be where the local authority proposed some “immediate intervention” on the basis of the threshold levels having reached a sufficiently high pitch (which the judge thought in the overall context of child protection was unlikely).

In my judgment, the situation of the children has moved on since the case was last before Hedley J; as Dr. Berelowitz indicated (see above) it has been “getting steadily worse”. I concur with Hedley J that the threshold for public law intervention was (and is) amply made out (at least for an interim order – section 38) in this case at this time.

The Guardian specifically raised the issue in her report for this hearing when observing that it was at least now a “moot point” whether the level of significant emotional harm had reached the threshold for local authority intervention; this question, she said, “is one which has exercised me and continues to do so”. When she gave her oral evidence (and this was confirmed in submissions on behalf of the children) she indicated that she had reached the view that there are indeed reasonable grounds for believing that the children are suffering or likely to suffer significant emotional harm.

On the evidence before me, I find that there are reasonable grounds for believing that the children are suffering significant emotional harm, in that (when taken in combination):

It seems likely that the children are exposed to demonstrations of M1’s mental ill-health; they have been directly involved in episodes (historic) in which her illness has been florid. There is a serious question about M1’s functioning as a parent in sole charge of the children (as she was during the hearing – a cause of a little alarm to me, given how she had presented on the previous day). Dr. Berelowitz also asked the rhetorical question: “I wonder how she’s functioning as a mother day-to-day if she is not well enough to see me.” (XX Tolson).

This (exposure to mental ill-health) would represent proof of significant harm for the purposes of the Part IV threshold test if the children had not been protected from it (i.e. the care of the children must be “not being what it would be reasonable to expect a parent to give to [them]”: section 31)).

It is also to be noted that J closed off her involvement with A with the following comments:

“In order for [A] to move into the next phase of her life, she requires an environment that will afford her stability and predictability allowing her to settle in her new school and approach adolescence without continued and sustained adult conflict. Without this I must share my concern for her longer term mental health which will inevitably be affected by this ongoing situation.”

Mr Tolson further caused M2 to accept that, so far as their willingness to attend contact was concerned, the children were now “beyond parental control”.

All of this, in combination, points me to a conclusion that the children are suffering significant harm. However, before pursuing this option, I have reached the conclusion that I need more assistance with understanding the issue of emotional harm now and in the future. In this respect I wish to engage Dr. Berelowitz for his further help, as to the current measure of harm and the correct manner of addressing it.

Transfer of residence: This option is advanced on behalf of the men as a solution to the impasse on contact; they seek a transfer of residence on a temporary or a permanent basis; they accept that to some extent the application for residence is a “strategic” one. Indeed, when F1 gave his evidence he told me that:

“it is not my intention to take the children away from [M1] and [M2]. The residence applications have been made simply to restore contact; I seek a temporary residence order.”

When asked by me how he felt the girls would adapt to a change of residence, he considered that B would “adapt quite quickly” but that A would “show stronger resistance; she would be upset as distinct from being harmed. The harm is being caused by her irrational fear of us.” I suspect that he underestimates the difficulties. F1 did not put before the court any clear plan to effect a temporary change of residence, indicating only in general terms that he favoured the removal of the children into a neutral setting (possibly – as F2 is reported to have suggested – to M1’s sister: “a rational person”) or for two or three weeks initially perhaps at a summer camp in Norfolk with professionals on hand, in order to re-ignite the contact.

While acknowledging to some extent that the removal of the children would be “very upsetting” to M1 (and M2), F1 quite wrongly, in my judgment, commented that he thought that M1 “might even welcome the break”, suggesting that it might be an “opportunity for relief” for her from the burdens of child care. Comments such as that give me cause for concern about F1’s true appreciation of the realities of this extraordinarily difficult situation.

F1’s position was that I should remove the children on a temporary basis at the conclusion of this hearing.

A transfer of residence is a well-worn route to achieve compliance with orders for contact: as Baroness Hale said in Re G (§42):

“as long ago as V-P v V-P (Access to Child) (1980) 1 FLR 336, it was realised that a more potent encouragement to comply with court orders may be to contemplate changing the child’s living arrangements. Ormrod LJ put it very directly, at 339:

‘… I do not wish to issue threats, but the mother should, I think, realise this: the father has a home with the half brother in it, he is unemployed, he is available to look after both these children full time. The mother is fully occupied, so that the grandmother is playing a very important part in this child’s life … That being so, it would be a mistake on the part of the mother, in my judgment, to assume that the order for custody in her favour is inevitable; it is not and if the situation goes on as it is at present then it may be necessary to reconsider the question of custody.’

It is, I believe, becoming more common for family judges not only to issue such warnings but also to implement them. However, the object is to ensure that the arrangements which the court has made in the best interests of the child are actually observed. Only if this is not happening will the court conclude that other arrangements will be better for the child.”

This option carries not inconsiderable risks in my judgment. I allude to three specifically:

Temporary change of residence: F1 and F2 do not in fact (“ideally”) seek permanent residence of the children as their primary case, only temporary residence (“we propose that they simply come to live with us for a while”); this option would be most strongly indicated if it could reasonably be predicted that the attitudes of M1 and M2 could be modified in the period of the temporary absence of the children. Dr. Berelowitz advised me (ev/ch) that “A temporary change of residence only works if it leads to a change in the attitudes of the women … this would not be likely to break down the phobic anxieties.”

There is a possibility (but no more than a possibility) that a temporary change of residence would achieve a change of attitude in the women. Unless I was reasonably sure that it would (or that a temporary change would be valuable for other reasons), then this option would be unlikely to be in the interests of the children.

The men suggest in the alternative that the children should reside somewhere ‘neutral’ for a period, from where they could visit F1 and F2 (possibly – as mentioned above – M1’s sister). This was not properly explored; the notion that the children could stay on a holiday camp in Norfolk for several weeks this summer in the company of an independent ‘supervisor’ did not seem to me to be feasible or well thought-through.

Permanent change of residence: It is not F1’s and F2’s primary case that there should be a permanent change of residence. However, they do at least make concrete (albeit I believe idealised and rather unrealistic) proposals for the arrangements for the girls in the event that the court took the view that the children should reside with them in the long-term. We have not reached that point.

The current Guardian has been the Children’s Guardian in this case for three years; the continuity of her involvement has been invaluable.

Where her views (expressed either in writing or orally) are relevant to the issue under discussion in this judgment, I have incorporated them already.

In endeavouring to reach a conclusion she found herself understandably torn between on the one hand the burning desire to bring the proceedings to an end, while on the other harbouring considerable concern for the welfare of the children. She considers that the proceedings have been “enormously stressful” for the children (and the adults), and “my instincts cry out for everything to end” (XX Storey). There is however a “big ‘but’” (ev/ch) which is that the children would not see the men again for the remainder of their minority, and beyond; this, she advised, “would be a huge loss to them” (ev/ch). She added, with feeling, that having been aware of the “happy times” within this family, it was now “terribly terribly sad”. Leaving the children with no relationship with the men would “leave them with so much negativity” (XX Storey).

She told me that she regarded the experiences of the children currently are “deeply harmful” to them (ev/ch), but did not see a transfer of residence as a possibility in the near future or at all. She felt that the children would “require enormous input” for that to work.

She indicated that she had been left even at the end of this process with “so many unanswered questions” and that referring the matter back to Dr. Berelowitz for him to see the children “maybe it’s a path that should be taken.”

She concluded by telling me that she felt that the children are in a “very very difficult place”. In this difficult case, she found herself unable (and I mean no criticism) to give me a clearer steer.

The failure of contact, and the corresponding attenuation in the relationship between A and B and the men, has regrettably not been effectively arrested by the endeavours of the family Judges, and professionals. Mr Tolson rightly, in my judgment, submitted in opening that this was a case in which ‘early intervention’ was what had been required (per Position Statement: “the courts should have nipped the problem in the bud by robust action years ago” [1.7.13 §11]). I entirely agree with that submission. It is salutary to note that five years ago, there was a relationship – a significant relationship – between the girls and the men; this was “before the battle started”. At that time, A told her Guardian that she wanted things to be like they were.

Five years down the line, the time for ‘early intervention’ has long-since passed; the catalogue of forensic engagement listed at the outset of this judgment is testament to that. There is no facility for turning the clock back.

The fault in the system lies in my assessment not with any individual judge, each of whom has brought considerable experience to this difficult case, but with the absence of judicial continuity which has permitted a lack of consistency in judicial approach (see Re M above). There was no obvious judicially-set ‘strategy for the case’ back in 2008. Such a strategy is highly desirable (if not indeed necessary) as “part of a wider plan for [the] children, which … needs to be thought through” (Re M [118])’. While judicial and specialist psychiatric efforts have failed, parental attitudes have become more entrenched rather than modified.

Numerous fragile conciliated agreements, crafted possibly more in hope than expectation, and endorsed by judges encouraging a collaborative outcome, have achieved at best no more than temporary solutions to a profound problem. For all the while that efforts have been made to promote contact without success, the children have become more enmeshed with the distorted thinking of their carers.

The deficits of the family justice system and its supporting professionals are, however, of lesser significance than the problems created by principal adults themselves. The women, in particular, in my judgment have chosen to defy court orders, and now endeavour to re-write the history of the family arrangement to justify their single-minded attitude. They (M2 in particular) see things in black (bad) or white (good); if the men are not involved in the children’s lives, everything is good; if they are involved, it is bad.

Although the attitudes of both couples have been fashioned over the years by a combination of powerful factors including (but not limited to) selfishness, vulnerability, resentment, and jealousy (to name but a few), there is a significant further factor in play – namely naivety. As Dr. Berelowitz observed, the “most exceptional naivety seems to be encountered in these assisted fertilisation cases”; all the adults in this case need to acknowledge their own responsibility for the naivety. The consequence of the failed plan for these children’s healthy emotional upbringing with the adults playing their parts is that there has been unleashed a “powerful phenomenon” (Berelowitz) in which the 1-5% of the time that the children are away from (in this case) the women, destroys the 95-99% of the time that the children are with them.

The upshot is that F1 and F2 have been left as “powerless bystanders”, where the psychological tension in the family becomes evermore unbearable.

In this case, a ‘co-parenting support’ approach (used in conflict cases as a means to set a clearer framework and help parents communicate) has been attempted but has, it is clear, failed. Dr. Cameron and Karen Woodall have worked hard with the appointed Guardians to negotiate workable arrangements for contact which attract the support of the adults; these have never achieved more than temporary solutions.

Mr. Tolson now advocates a punitive approach – he specifically argues for ‘the stick’ rather than the ‘carrot’. It seems to me that a punitive approach may well have been appropriate, in a proportionate way, some time ago, when the problems were new and the authority of the Court (whose orders have been wilfully ignored for years in this case by the women in particular) needed to be asserted. But the problems are deeply engrained now, and it is difficult to apply a ‘punitive’ remedy to cure a problem which has become multi-dimensional.

It is now impossible in my judgment to conclude that the failure of contact lies with the failure of M1 and M2 to facilitate it; in my judgment the problem is considerably more complex than that. The children have absorbed the negativity of their carers, and I believe are now genuinely resistant to the attempts to make the transition. Like Hedley J, I do attach the greater blame for this problem with the women; unlike him, I do believe that the greater proportion of responsibility lies not simply in the fact that the children spend more time with the women, but with the fact that it is in their home (not in the men’s home) that the hostile attitudes have taken seat. A punitive approach to the issue would be appropriate were I to find that the women, the resident parents, were being unreasonably and implacably hostile. The case has gone beyond that now.

Committal is sought by the men in order “to effect a change in behaviour by the Respondents and to ensure that contact is re-started immediately”. I do not believe (for the reasons set out above) for one moment that a committal order would have that effect.

While the family into which A and B have been born is an alternative, non-traditional, one, I am conscious that I should not allow the unusual context of the family, or the case, to distract me from the fundamental principles of children law of universal application. The fact that A and B never experienced family life in the traditional sense does not divert me from taking the responsibility for effecting contact just as if this were a case of ‘separated’ parents.

However, the case is different in that there is inevitably a powerful and potentially noxious dynamic between the adults, especially between F1 and M2 (commented on by Hedley J). As mentioned above, this is the relationship which Dr. Berelowitz described as “very difficult territory… it’s immensely complicated”; in my judgment this difficult relationship has dominated the problems given that M2, who fulfils the major parenting role of the children, appears to feel ‘trumped’ in a power struggle with F1.

I nonetheless have to bear in mind, when reaching conclusions about the restoration if not preservation of family relationships, the unusual constitution of this particular family.

In reaching my conclusions in this case, and plotting a course for the future, I cross-check my findings against the welfare checklist in section 1(3) of the Children Act 1989, and by reference to the core principles of Article 8 of the ECHR.

It will be apparent, I hope, from the discussion above that I have had regard to the “ascertainable wishes and feelings of the child(ren) concerned in light of [their] age and understanding”. I consider that the children have in very large measure aligned themselves with the women, perhaps inevitably, in a ‘folie a quatre’.

I have very considerable concerns about whether their “emotional needs” are being met now in the home of the women. This factor links in with my assessment of the “harm which [they are] suffering or [are] at risk of suffering”. This, in my judgment, is very real, and is discussed more fully above. As acknowledged by Dr. Berelowitz, there is no solution currently available that does not involve significant loss for the children. Although that is my finding, I recognise that M2 and M1 will not perceive the children having no further contact with F1 and F2 as involving any degree of ‘loss’ to the children. If I am correct about that, and as Dr. Berelowitz observed in the hearing, it would be very hard for the women to help the children cope with a loss they don’t believe the children to have suffered.

A change of residence would impose on the children a radical change of circumstances, the “likely effect” of which would be significant distress (at least) in the short if not the longer term. The “background circumstances” of these children (their unusual family composition) is of course a point of particular significance (discussed above). But part of the ‘background circumstances’ is the fact that there has been successful contact in the past, and that there is no sound objective reason why the contact actually came to an end.

I have very considerable misgivings about the ‘capability’ of M1 to meet the emotional needs of the children at present; from all that I have read, and heard from her and M2, she is, in my judgment, generally too unwell for too much of the time to meet the needs of the children; M2 made clear that the primary responsibility for the care of the children, and the running of the house, falls to her. She told the Guardian that M1 “in her distracted state” would leave “the gas on and the back door open”.

I am deeply concerned about the impact of these proceedings on the mental health of M1. I find that, while stresses of various kinds undoubtedly have a deleterious effect on her health, these proceedings concerning the children have (and have had) a particularly acute impact upon her. To some extent, these stresses have been brought upon herself, or have been brought upon her by M2. But whatever the source, I am clear that it is not in the interests of the children for M1 to be unwell; they find it hard. I have had to weigh carefully here the risks for the children in continuing the proceedings against the risks of not doing so. Important in this evaluation is my concern about the “capability” of M1 going forward to play her part in meeting the needs of the children.

M2’s conduct in these proceedings of late, and specifically in relation to the paternity testing issue, calls into very serious question her ‘capability’ to meet the emotional needs of the children in an appropriate way. I consider that she has demonstrated poor judgment, in a ruthless endeavour to expunge the men from the children’s lives. Worryingly, I believe that she lacks insight into the consequences of her actions, and – to some degree – empathy for those affected, including the children. The Guardian was justifiably concerned that M2 did not understand “my disquiet about how the whole matter [concerning the DNA testing] was handled”. The Guardian’s comments, in my view, apply across a wider spectrum of M2’s conduct.

Finally, and importantly, I have very much in mind the right of the children to a private and family life; in respecting this Article 8 right, I keep at the forefront of my mind that their family life includes F1, and to a substantial extent, F2.

It follows from all that I have said above, that I am deeply concerned for the welfare of A and B. As the hearing has progressed, and the evidence unfolded, my concern about the resumption of contact has been substituted by wider and more profound disquiet about their general emotional well-being.

A and B have been caught in the middle of this ‘battle’ (as A called it) for too long; they have been both the weapons and the victims of this conflict. While to some extent they have shown themselves able to weather the pressures at home and perform well at school, I do not believe that I should assume that their apparent resilience is either healthy, or necessarily more than superficial. The outward signs of emotional harm are troubling. Superimposed on these stresses is the children’s ability to cope with the symptoms and consequences of the mental ill-health of their mother.

For the reasons rehearsed in this judgment, I have reached the firm conclusion that there are reasonable grounds for believing that A and B are suffering significant harm. That harm is, in the assessment of the Guardian, and an assessment which I share, of such significance that local authority intervention may well be indicated.

In the circumstances, I cannot in all conscience bring these proceedings to an end now, and walk away.

In order to reach final welfare-based conclusions about the way forward, I require further assistance from Dr. Berelowitz, specifically on the psychological effects on the children of the limited options now available. Regrettably he was unable to answer some of the questions posed of him in the recent instruction, as he had not seen the children: specifically, he spoke of his inability to comment on the consequences for the children of the options proposed (including the change of residence) without meeting them. Those important ‘gaps’ should now be filled.

This step, at this stage, in my judgment, inflicts the minimum amount of harm to the children and the adults, while seeking to address directly my concerns about the well-being of the children.

The issue of contact, and whether the Court should take any steps to enforce it (and if so how), now needs to be seen in the wider context of a strategy to address the children’s broader emotional needs, with the immediate imperative of releasing them from harm. It may be that, once the psychological effects have been evaluated, the advice is to remove the children from this situation altogether; it may be that the balance of harm comes down in favour of leaving the children with the women, and ceasing all further efforts to re-create the relationship between the children and the men. Contact issues (and ‘enforcement’ by means which protect the children) will have to be considered within this wider picture; the future relationship between the children and the men, and any efforts to restore it, will have to take its place within the bigger plan to create a healthier emotional life for them.

I would therefore like Dr. Berelowitz to make an urgent assessment of the general emotional well-being of the children, and advise me specifically on the following points:

To this end:

I believe that Dr. Berelowitz may be able to see the children in the early part of August, or the early part of September. Plainly the sooner the better.

I propose at this stage to defer a decision on making a direction under section 37 Children Act 1989. I am concerned not to expose the children to the involvement of further professionals unless it is necessary for me to do so. Furthermore, it seems to me that the relevant local authority would almost certainly wish to consider any report from Dr. Berelowitz on the issues identified above before undertaking its own assessment of the need to institute proceedings. Dr. Berelowitz himself recognised that the challenges facing any social worker at this stage would be not inconsiderable:

“It would be very difficult for any social worker. Quite strong guidance would need to be given by the Court; they (i.e. the social workers) would have to be mindful of a number of issues and what the children are exposed to in a mini-Munchausen sort of way … i.e. paternity testing without telling the children or her partner.” (Re-examination)

I shall have the case listed before me for further directions once the report from Dr. Berelowitz is to hand; this is to be fixed now, when we have a time-table for Dr. Berelowitz’s assessment and report.

For that directions hearing, I shall direct that the four main parties shall each have permission to provide a short Position Statement for the limited purpose of:

For completeness’ sake:

I shall make no specific order for contact pending further assistance from Dr. Berelowitz (insofar as is necessary, I shall ‘suspend’ the order of 20 December 2011). I am satisfied that such an order has no current real value. It does not appear to send any sort of signal to the women that contact should happen; insofar as it should do so (or should have done so), the women have ignored court orders thus far. The absence of a Court Order may offer the minor benefit of relieving the children of any expectation that they should be seeing the men at the moment.

Furthermore, there will be no indirect contact for the time being either, save (though I expect that we will be back in court before then) that there can be cards and presents sent on A’s birthday and B’s birthday and at Christmas (this limited arrangement is apparently supported by the women). I fear that indirect contact in itself has become another “aversive” (Berelowitz) relationship for the children from which they should be temporarily relieved; I am keen to allow the dust of this hearing to settle.