Strand, London, WC2A 2LL
B e f o r e :
|- and -
- and -
(Through his Children's Guardian Samantha Ryall)
(Appeal: Termination of Contact)
Richard Egleton (instructed as Direct Access Counsel Pro Bono) for the 1st Respondent
Katie Phillips (instructed by Harney & Wells) for the 2nd Respondent
Hearing dates: 11 December 2018
Crown Copyright ©
Mr Justice Williams :
The Father [#91-94]
i) At times the father did indeed become angry with R and that he exhibited that anger and frustration by shouting at R when it was not necessary to do so and when the father should have had more empathy (or attunement) with R; on balance of probabilities the father's actions were not of a nature (or frequency) that R suffered harm. The father has not acted in a way which caused R emotional or physical harm.
ii) The mother has not proved that the father took hold of R in the manner that she alleges. On this occasion, the father shouted at R (and that this showed a lack of understanding as to R), but there is no other finding. The finding is that this is not a father who has harmed his son.
iii) Other than the findings above the findings sought by the mother are not proven on balance of probabilities.
The Mother [#95 a-g]
iv) The mother has been dishonest on many occasions and she has tried to bolster her firm belief by being untruthful about the extent of the abuse. She has encouraged R in his belief both directly (by discussing things with him) and indirectly (by him overhearing her, or by writing in his diary)
v) In 2014 the mother primed R to make allegations against the father to the police which are not true,
vi) The mother discussed with R what she said had happened to him in the past, and she encouraged him to tell the social worker. The mother did coach/primed R to make allegations against his father which were not true
vii) Beaver's diary - The mother wrote matters into the diary which were not in fact true. The mother has lied about the father more generally to bolster her case
viii) Ongoing since 2013 the mother engaged in a course of conduct with the intention of preventing R from having any contact with the father and the paternal family.
ix) Ongoing since 2013, the mother has been implacably hostile towards the father having contact and/or a positive relationship with the father based upon her firm (but incorrect) belief that contact with the father would be unsafe.
x) From 2015 to present - the mother has alienated R from his father. As a result, R has suffered and/or remains at risk of suffering from significant long-term emotional harm as a result of his mother's manipulation; this is against the background of the mother's strong and firmly held (though incorrect) belief that the father presents a risk to R.
xi) From 2015 to the present the mother has repeatedly deliberately breached court orders (including consent orders) during the court proceedings that R has been the subject to since 2015.
'...if the second respondent local authority wishes to be heard at the hearing of the appeal, they shall notify the family division appeals office within 14 days of service of this order. Upon receipt of such a notice the matter shall be referred to a judge of the family division for further directions.'
i) The child arrangements order for R to live with his mother (namely the refusal to transfer the living arrangements to the father)
ii) Child arrangements order for R to spend time with his father by way of indirect contact (namely the refusal to order direct contact in the alternative)
iii) The mother shall share each item of indirect contact with R and she shall encourage him to respond to his father
iv) Section 91 (14) Children Act 1989 orders prohibiting applications regarding contact for one year; and prohibiting applications regarding live with orders for two years.
i) One of the findings made by the judge was that R had suffered significant emotional harm as a result of the actions of the mother and was likely to suffer further significant emotional harm as a result of the actions of the mother. This particular finding, was contrary to the local authority's conclusion that the threshold for public law intervention was not met. Having made that finding prior to finally determining the private law applications and in particular the contact application the parties & the court should have reflected upon that finding and what further role the local authority might have been required to play in fulfilment of their statutory obligations to R.
ii) The evidence of the clinical psychologist was that efforts to reinstate contact should be pursued. The effect of her evidence was that R would suffer significant harm if his relationship with his father was lost. She considered that the harm he would suffer in his mother's care could be ameliorated by undertaking therapeutic work to enable the mother better to meet R's emotional needs. She considered that if the mother did not make progress in her capacity to meet R's emotional needs the harm he may suffer in her care could outweigh the harm that would be caused by removing him from her care. The decision to terminate contact and to end the proceedings without further investigation carried with it the inevitable consequence that R would remain in the care of his mother and be exposed to the risk that Dr Duprey identified. The combined benefits of facilitating the re-establishment of contact and addressing the mother's capacity ought to have led to the conclusion that further enquiries were required to address those issues. The court placed insufficient weight on the medium to long term harm that R might suffer as compared to the short-term harm that he would suffer by the continuation of the proceedings or further work on contact.
iii) Although no party had put before the court evidence of the therapeutic resources that could be deployed to address the risks identified by the psychologist it is clear that there was a gap in the enquiries made as a result of the parties not having been in a position to pursue to a conclusion the enquiries the psychologist recommended. In those circumstances the court should not have proceeded to a final determination that there should be no contact as there were still potential steps that could be taken to promote contact. The end of the road had not been reached.
The Grounds of Appeal
i) Having made the wide-ranging findings that the father sought against the mother, the judge failed to place any or any sufficient weight upon the consequences of those findings within the subsequent welfare analysis. Accordingly, the judge reached the wrong welfare conclusion for R.
ii) In the alternative, in spite of the learned judge's own findings combined with the expert evidence of Dr Duprey, the judge prematurely abandoned the ongoing judicial duty to reconstitute the relationship between R and his father. Accordingly the refusal to order direct contact between R and his father was disproportionate in the circumstances.
iii) The learned judge placed insufficient weight on the long-term harm that R would suffer by not having a relationship with his father and the paternal family (as opposed to the short-term disruption of restarting contact).
iv) On the basis of the learned judge's findings and the evidence that was before the court, the judge was wrong to grant an order for indirect contact between R and his father with contact to be facilitated by the mother when in reality this order is unworkable.
v) The learned judge placed too much weight on the mother's reports of R's wishes and feelings and upon R's highly manipulated wishes and feelings; rather than on R's ascertainable wishes and feelings in the context of the wider evidence in the case.
vi) The judge failed to sufficiently consider (and he therefore prematurely dismissed) the option of a suspended transfer of residence order, in a final attempt to secure the mother's compliance with a child arrangements order for R to spend direct time with his father.
vii) The judge underestimated the ongoing long-term emotional harm that will be caused to R by him remaining in his mother's care in the context of (1) the serious findings of her emotional abuse of R (2) her denial to R of a relationship with his father and the paternal family, and (3) Dr Duprey's concerns about the emotionally neglectful parenting that R will receive from his mother in future.
viii) The learned judge was wrong to grant a section 91 (14) order in these circumstances.
The History of the Litigation
i) The background
ii) The law
iii) The evidence
a) The mother and the father
b) The professionals (social workers)
c) The psychological evidence
d) The children's Guardian and the local authority
iv) Factual findings
v) Welfare assessment of evidence
vi) Welfare analysis incorporating the welfare checklist factors
a) Where should R live
c) Supervision order
d) Section 91(14)
Appeals: the approach
22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP  EWHC 3964 (Fam),  1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."
23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski  1 WLR 1360. I confine myself to one short passage (at 1372):"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".
"21 But deciding the case as if at first instance is not the task assigned to this court or to the Inner House Lord Reed summarised the relevant law in para 67 of his judgment in Henderson [Henderson v Foxworth Investments Ltd  UKSC 41,  1 WLR 2600] in these terms:"It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
No Contact Orders
1. "26 'Welfare' extends to and embraces everything that relates to the child's development as a human being and to the child's present and future life as a human being. The judge must consider the child's welfare now, throughout the remainder of the child's minority and into and through adulthood. The judge will bear in mind the observation of Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions)  2 FLR 124 at 129, that:
2. ' the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems.'
3.  Evaluating a child's best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. Everything that conduces to a child's welfare and happiness or relates to the child's development and present and future life as a human being, including the child's familial, educational and social environment, and the child's social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account. The judge must adopt a holistic approach "
" Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.
There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
The key question, which requires 'stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
All that said, at the end of the day the welfare of the child is paramount; 'the child's interest must have precedence over any other consideration.'"
" judges should be very reluctant to allow the implacable hostility of one parent (usually the parent who has a residence order in his or her favour), to deter them from making a contact order where they believe the child's welfare requires it. The danger of allowing the implacable hostility of the residential parent (usually the mother) to frustrate the court's decision is too obvious to require repetition on my part."
Analysis of the grounds of appeal and the judgment
Grounds i), iii) and vii)
4. Having made the wide-ranging findings that the father sought against the mother, the judge failed to place any or any sufficient weight upon the consequences of those findings within the subsequent welfare analysis. Accordingly, the judge reached the wrong welfare conclusion for R.
i) The learned judge placed insufficient weight on the long-term harm that R would suffer by not having a relationship with his father and the paternal family (as opposed to the short-term disruption of restarting contact).
5. The judge underestimated the ongoing long-term emotional harm that will be caused to R by him remaining in his mother's care in the context of (1) the serious findings of her emotional abuse of R (two) her denial to R of a relationship with his father and the paternal family, and (three) Dr Duprey's concerns about the emotionally neglectful parenting that R will receive from his mother in future.
i) Paragraph 96 he says 'although Dr Duprey stated in evidence that if the court made findings against the mother (as it has) then that would be a major concern regarding R's welfare, her view (and that of the children's Guardian) in the previous proceedings was that the truth of the findings sought by the mother and father would not make a difference to their recommendations...The professionals recommendations as to outcome were the same whatever findings the court made I make it clear that whatever my findings on the factual matters had been, I agree with the professionals that the welfare of ME would lead to the same conclusion as to where he should live and as to the issue of contact. My decision would be the same.'
ii)  Dr Duprey agreed in evidence that R has suffered harm in the care of his mother, and is likely to continue to suffer from harm if he remains in her care. Contact with his father is important, and would be important as he grows older, and lack of contact is likely to harm him. That appears to be something which the mother is just not able to recognise. [HHJ Thorp goes on to explain why Dr Duprey considered that separation from the mother would cause extreme distress and a placement elsewhere highly likely to break down. He set out a detailed account of why Dr Duprey thought that a move from the mother would be extremely harmful in paragraphs 47, 48 and 49].
iii)  Dr Duprey shared the view of all professionals that this is not an easy case. Even more difficult, she said, was the issue of ongoing contact with the father. She recognised the problems which there had been over the last two years, but was still "reluctant" to recommend that there be no order for contact in this case, and stated that R deserved a relationship with this father. On the other hand, her firm view was that R should not be put under any further pressure and that he should not be seen by professionals to discuss this issue. She accepted in cross examination that the continuation of proceedings is in itself harmful to this child, and she was not able to identify a practical way for contact to be facilitated.
iv) 'As with Dr Duprey, the children's Guardian found the issue of contact more difficult, and there was some divergences of use as between the professionals on this issue-though the differences were not so much as to the principle of contact but as to what could be practically achieved. The children's Guardian agreed with Dr Duprey that the contact should take place if this was possible and if it were not harmful to R. That has been his view throughout. His difficulty was with the issue of how this could be achieved in a practical way. The last two attempts at engaging with R have not only been wholly unsuccessful, but R has put himself at risk His view was that to force contact now would be impractical and potentially harmful to R.'
v) His view was that it was only at this hearing and with the assistance of the experienced and skilled professionals, that she has fully understood the issues in the case. This has provided him with some hope she may be able to recognise R's needs and encourage contact in the future.
vi)  'I have made findings above. I do not find that the father has harmed R the harm which R has suffered to date has been due to the mother's wrong perception of the father, the fact that she has convinced herself that he is a danger, her continued reminding R of the danger presented by the father so that he too has become convinced of this, her exaggeration, and her not working with professionals. This has caused R to be involved in court proceedings over a long period of time, causing him distress and causing him to feel under pressure. More importantly it has led to him losing his important relationship with his father [one has to import into this the earlier findings in particular the conclusion that R had suffered significant emotional harm and would continue to suffer significant emotional harm from his mother's alienation of him from the father].
vii) there are concerns arising from the enmeshed relationship between the mother and ME I do accept that[evidence] of Dr Duprey that there are limitations in the mother's ability to fully meet R's needs in this area
viii)  'the risk of harm in staying with the mother is obvious. Whether or not the court makes an order for contact, direct contact will not occur in the short term and very probably over the longer term. Given R's present position, there is a high risk that the mother will not encourage him to have contact with his father, that she will not promote indirect contact, and there is a risk that she will continue to encourage R in his present view. While I accept that R is presently" content not to see his father a lack of relationship with him will cause significant harm in the future. He will also suffer harm if he cannot have contact with the paternal family... That having been said, I take into account the history of the proceedings. Many (though far from all) of the problems have arisen around attempts at overnight contact and, for periods, contact has worked. If R knows that he is being listened to, and if the mother knows that he is staying with her, I agree with the children's Guardian that there is at least some prospect that indirect contact will work. As I have indicated, there is also a risk arising out of the enmeshed relationship itself-that is that R will not fully develop his own personality and that in itself will cause him harm."
ix) 'There is a further, and important, question arising if R stays with the mother-that is whether contact should be ordered to continue. I have already addressed the fact that if it does not, then that will be very harmful to R in the short and long term. There is also a risk of significant harm to R if an order for contact is made. Once again, I have dealt with this issue when addressing the evidence of Dr Duprey and the children's Guardian, and I accept their evidence. It is clear that even discussing the issue of contact causes ME considerable distress, and forcing R into contact at this time will also cause him significant harm. He is firmly set against seeing his father and is resistant to doing so. His behaviours in March and May of this year demonstrate that an order for contact may cause him not only emotional harm may cause him to put himself at risk. At present none of the parties have put forward a feasible solution to the difficulty-indeed the lack of such a feasible solution forms part of the father's main case on transfer of residence.'
x)  [where should R live?] I do attach weight to the fact that R has suffered harm due to his mother's actions, and that he will continue to suffer by not having a relationship with his father, and I take into account that there is unlikely to be a substantial reversal in the views of the mother and that there is a high risk that R will not have a direct relationship with his father. While I share the hope of the children's Guardian that the mother will now facilitate indirect contact as she says she will, there is clearly a risk that this will not be successful.' The judge goes on to remind himself of the legal emphasis on maintaining the child parent relationship.
xi) [123-130] These paragraphs set out his analysis and conclusions in respect of the issue of direct contact. They need to be read in their entirety and I do not set them out in full in this judgment. At paragraph 129 the judge draws his analysis together and says 'I take account of all of these issues [evidence of harm, evidence of lack of practical means of pursuing contact] once again, I do not set them out in list form, but I refer to the matters set out above under the welfare checklist. With a great deal of reluctance, and sympathy for the father, I have come to the conclusion that the children's Guardian is correct on his analysis on this issue. It is clearly not possible for contact to take place without further intervention, and further intervention with R is likely to be damaging to him. He has been through many years of litigation and uncertainty, and needs some time to settle in his mother's care without the pressure upon him of seeing his father. In my judgment it is in his welfare interests for there not to be an order for direct contact. Neither is there any practical way for contact to resume. An order is likely only to result in further litigation for the child.
Discussion and Conclusions
i) Firstly, growing up and reaching adult hood without having any relationship with his father or paternal family,
ii) Secondly, continuing to hold a set of beliefs about his father that were at best inaccurate at worst fundamentally wrong,
iii) Thirdly, growing up and reaching adult hood being parented solely by his mother who had been identified not only as having caused emotional harm to him through her alienation of him from his father but also and as significantly whose parenting was identified as creating an enmeshed relationship where R was unable to developmentally separate, to develop his own identity separate to that of his mother.
Grounds ii) and vi)
i) In the alternative, in spite of the learned judges own findings combined with the expert evidence of Dr Duprey, the judge prematurely abandoned the ongoing judicial duty to reconstitute the relationship between R and his father. Accordingly, the refusal to order direct contact between R and his father was disproportionate in the circumstances.
6. The judge failed to sufficiently consider (and he therefore prematurely dismissed) the option of a suspended transfer of residence order, in a final attempt to secure the mother's compliance with a child arrangements order for R to spend direct time with his father.
7. 'The court has a duty to look at all realistic possibilities. In assessing whether there are further steps the court could take to enable contact, I have considered whether a further adjournment would be of assistance (even though no party asks the court to do so. I have reached the conclusion that this would not be in R's welfare interests. The same point apply. Any intervention with R is likely to be harmful to him. Intervention with the mother (even if resources were available) is likely to take some significant time. I also bear in mind that further delay is unlikely to be in R's welfare interests given the duration of proceedings and that he has become distressed by the proceedings and intervention.'
i) The learned judge placed too much weight on the mother's reports of R's wishes and feelings and upon Rs highly manipulated wishes and feelings; rather than on R's ascertainable wishes and feelings in the context of the wider evidence in the case.
Indirect Contact and S.91(14)