England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PONTEFRACT COUNTY COURT
(His Honour Judge Ibbotson)

		Royal Courts of Justice Strand London WC2 Thursday 8 November 2001

Thursday 8 November 2001

1. LORD JUSTICE THORPE: This is a very sad case in which a young father struggles to achieve a relationship with his eight-year-old daughter, M. The parents were never married. Their relationship was brief and began when they were both at school. Even at the date of M's birth on 15 January 1993, the mother was only just 17 years of age and the father was 16.
2. Following the birth, M sent much time at the home of her paternal grandmother, but when in June 1998 the mother met her present partner and moved into a home of her own, the arrangement for M to spend the weekends with her paternal grandmother was reduced from every weekend to alternate weekends. Thereafter it is unnecessary to record any of the detail. The father has obviously been through a great deal of emotional turbulence. He has lost his job, he has suffered depression. There was at least one incident in which he paid a violent visit to the mother's home at a time when he had been drinking. It is quite impossible to establish with any certainty the progressive steps in the deterioration of family relationships, but certainly the proceedings in the county court have achieved nothing over the course of two and a half years of litigation, and no less than five court welfare officers' reports, other than a degree of supervised contact to the paternal grandmother at a contact centre, an arrangement which itself broke down to leave nothing but indirect contact.
3. That situation had persisted for some time prior to the hearing before His Honour Judge Ibbotson sitting in the Pontefract County Court on 2 July 2001. On that occasion the father was represented by his solicitor, Mr Switalski. The mother was not present, nor was she represented, since for some time previously she had made it plain that she had no intention of participating in proceedings or of complying with any court order. So the judge on that occasion was, in a sense, groping in the dark. He had, however, the evidence of the court welfare officer, Miss Pearlman, who had been engaged in the case throughout. We have a transcript of her evidence and it is plain from the exchanges between the judge and Miss Pearlman that she was sympathetic to the stance that the mother had adopted, at least to the extent of recognising that the mother had reasons for her objections which, at least, were good in her own eyes. The welfare officer explained that those perceptions were particularly that M had been the subject of a bit of a tug of war between the respective grandparents, the perception that the father's emotional and psychological turbulence had acted against him, the fact that the paternal grandmother and/or her sister had made complaints to social services against both the mother and her present partner, complaints which when investigated had not been substantiated. So the court welfare officer said (page 2 of her evidence, line 18):

"So to sum up, those are the kind of reasons that she has put forward. I feel that [M] feels, as I have indicated in my final report, very very torn, very very torn in terms of what she might feel and what she might want. Although I feel she has happy memories of the time she spent with her father and paternal grandmother I think she feels the pressure of saying that she wants to see them any more - she's not prepared to say that at the moment. She's not prepared to say that because she knows that Mum doesn't approve and Mum has been made unhappy in some ways by those people."

4. She added:

"I think it is a very very difficult situation for M and I feel it's gone on for a long time now. I wouldn't say it is right to give up on children or to give up lightly in any way but I think there comes a point where you have to recognise that continued pressure becomes counter productive."

5. Mr Switalski, in putting the father's and the paternal grandmother's case, had very helpfully laid before the judge a menu of options which he submitted were open to the judge for the resolution of the problem. The judge recorded them in the order in which they had been given: (1) was to adopt the welfare officer's report and order no direct contact, but to continue the order for indirect contact; (2) was to press ahead in an attempt, previously unsuccessful, to ensure observed contact; (3) was to make a family assistance order; and (4) was to set wheels in motion to appoint a children's guardian with separate representation for M.
6. The possibility of the appointment of a guardian was put to the court welfare officer by the judge at page 2 in the transcript of her evidence. He asked "What are your views on that?" The court welfare officer explained that it was an area of some complexity, partially covered by a Practice Direction that had recently been issued by CAFCASS. The judge, having heard that, said:

"I get the feeling - correct me if I am wrong, Miss Pearlman - I get the feeling that that is probably taking a sledge hammer to crack a nut in a case like this, is it not?"

7. There was this significant answer:

"I would agree with you, your Honour. I don't feel that it is in [M's] interests at this stage."

8. Mr Switalski was invited to cross-examine. Towards the end of his cross-examination he put this very specific question again: he said (page 7 line 29):

" ... do you not think it valid that [M] has the chance, the opportunity, to develop her view with an independent child care solicitor and guardian in a non-intrusive, non-threatening way?"

9. And the answer was:

"I think further intervention would be intrusive and possibly threatening in the sense that it might heighten [M's] anxiety."

10. In his judgment, the judge recorded the options that had been laid before him for his consideration. He explained why the second option was simply not realistic. As to the third option, he noticed that a family assistance order without the consent of the mother would be of little practical benefit. He then considered the appointment of a children's guardian and separate representation and he said of that (page 4 of the judgment at line 2):

"On the face of it that course might have its attractions because it would give [M] a voice and separate representation and somebody could make representations on her behalf. However, I am convinced, having considered the matter and listened to Miss Pearlman's evidence, that to take such a step in a case like this, which after all is not entirely unusual in that there is a mother who on the face of it is intransigent about contact, would be to take a sledge hammer to crack a nut."

11. Accordingly he made the order for indirect contact to continue. He specified its particulars and he called for a review in twelve months' time.
12. An application for permission to appeal was filed. Mr Bickerdike was instructed to present it and filed a persuasive skeleton argument in support. He made a number of points and drew out the suggestion that there were significant policy issues that required to be considered by this court, and particular consideration should be given to ways and means of providing some sort of mechanism for breaking an impasse which the ordinary processes of litigation had failed to resolve. I gave permission to appeal.
13. In response to a request from CAFCASS by letter of 10 August 2001, I joined them as parties to the appeal. However, at a later stage, by letter of 19 October, the Director of Legal Services wrote to the court saying that there had been insufficient opportunity for CAFCASS to formulate its policies in this area, and furthermore it was under an obligation to consult first with the Lord Chancellor's Department before formulating policy. Accordingly an application was made for the discharge of the order granting party status to CAFCASS. That application I granted.
14. Thereafter the only party to the appeal has been the father, although Mr Switalski on his behalf has taken every step possible to try and ensure that the mother was properly informed and involved. However, at a relatively late stage Mr Switalski obtained funding to enable him to brief Miss Eleanor Hamilton QC to lead and, with her arrival, we have had the advantage of a very full and excellent skeleton, dated 6 November, in which she expands on the submissions addressed by Mr Bickerdike earlier and, in particular, reviews relevant European authority. But at the hearing this afternoon she has really sought to succeed on the simple but difficult submission that the judge was plainly wrong to have rejected Mr Switalski's fourth option. She points to the fact that Leeds seems to be unusually favoured in that there is an established practice for judges to direct the appointment of specialist solicitors as guardians in cases involving difficulties over contact. The specialist solicitor will in turn appoint either a panel guardian or an independent social worker who will then play a very active part in trying to either introduce or restore a relationship between the child and the absent parent.
15. That seems to me to be a practice development which, if applied universally throughout the jurisdiction, might have very serious impact upon the public funding of private law Children Act work at a time when the budget for specialist advocacy in this very important field is the subject of swingeing cuts. Any such general extension could only be the subject of a fundamental decision on policy which would not be for this court but only for government. It is relevant to notice that there may well be both the opportunity and the obligation on the government to take policy decisions in the very difficult field of contact litigation following the delivery of a report from the Children Act sub-committee of the Lord Chancellor's Advisory Board, which is imminently due. It is also to be noted that the CAFCASS service is undergoing the inevitable processes of settling in. It is only months since its inception and obviously any consideration of what its role should be in this difficult territory must await the consolidation of its formation. So in my judgment this court should be extremely cautious of seeming to validate by a decision in an individual case what may be an exceptional local practice.
16. But none of that need really be regarded as even approaching the foundation of my judgment in the case. For it seems to me that this appeal can be decided simply on the basis that the options laid before the judge were wisely framed by Mr Switalski. The judge made an informed and reasoned choice which was directly in accordance with the advice given by the court welfare officer. Far from saying that that decision was plainly wrong, it seems to me the decision that would have been taken by the majority of experienced specialist judges in this field.
17. So for those relatively narrow reasons, I would simply dismiss this appeal.
18. THE PRESIDENT: I agree with the judgment of my Lord. I direct that there should be no identification of the names of any of the parties or anything that would lead to the identification of the parties in this case.
19. As my Lord has said, it is a very sad case. I have great sympathy with the father, and particularly with the grandmother. She played an invaluable part in the early upbringing of her grandchild, now aged 8, nearly 9, who is now not seeing any of her paternal family. But the child is flourishing in everyday life, however deprived of the life of the paternal family. The problem for the father and grandmother is that the judge has to place the welfare of the child as an overwhelming factor and balance the advantage of restoring contact with the father against the disadvantages of the child being torn: the pressures of contact, the recognition by the child that the mother does not support contact (indeed is hostile to it) and would not help her daughter to move between the families. The judge had no alternative, in my view, but to find that contact could not be direct at this stage but could only be indirect, and he made an order for indirect contact. Indeed, Miss Hamilton QC on behalf of the father and grandmother does not suggest that there should be immediate direct contact.
20. The issue before this court is whether the judge was wrong not to appoint a children's guardian and separate representation. That is an unusual course in private law cases and it is important that we all remember that. Whatever may be the policy, and indeed the position, under CAFCASS, it is actually irrelevant to this appeal. The appointment of guardians under rule 9(5) in the Leeds area may require some consultation with CAFCASS, and it might be useful to draw this established practice to the attention of CAFCASS and explore it in other ways, but that also, in my view, is irrelevant to this appeal.
21. The judge looked at the application for a guardian on its merits and not on policy considerations. He agreed with the advice of the court reporter that direct contact was not in the interests of M at this stage and my Lord has read out the relevant, and in my view very powerful, passages of the evidence of the court reporter. The judge was entitled to accept the advice of the court reporter. This court is not in a position to say that the judge was wrong, despite Miss Hamilton's able arguments to the contrary. He exercised his discretion appropriately and we cannot properly interfere. I would therefore dismiss this appeal, but I direct that there should be a transcript of our judgments at public expense.
ORDER: Application refused. Public funding assessment of the applicant's costs. A copy of the transcript of these judgments to be provided to the parties at public expense. (Order not part of approved judgment)