England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME WITH APPEAL TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Thursday, 22nd November 2001

1. THE PRESIDENT: This is a sad case, but not all that unusual, about a little boy called Oliver, born on 14th December 1991. I make a direction that there be no identification of Oliver, his mother, his father, his grandparents or anyone else or of the place where anyone lives in order to protect the anonymity of the little boy. In this case it goes further because it is important that the father's family appreciate that it is not a good idea to go public in relation to this child because it will not help any future relationship between the child and the paternal family.
2. The boy is nearly 10. His parents married on 26th August 1978. Sadly, the marriage did not flourish. In December 1997 the mother petitioned for divorce. There have been floating around allegations about domestic violence which have never been pursued and do not form part of the case before this court and therefore for the purpose of contact, which is the issue before the court, I am, for my part, disregarding them.
3. The father started by having staying contact. Today the situation is that there is no contact at all and there has been no contact since 20th April 2000. The father, who represents himself, says in his skeleton argument this is an ordinary contact case which in the space of three years reached a final order for no contact and, he says, for no good reason. Contact, including overnight contact, always went well. The case simply followed the resident parent's wishes down to extinction. I do not accept the father's rather simplistic approach towards contact. In his well expressed submissions to us, both written and oral today, he has done a very good job representing himself assisted by an excellent McKenzie friend. He has been moderate and sensible. I am not entirely certain that he has always been moderate and sensible in his approach to the issue of contact. He asks today that there should be restored contact. He recognises that that cannot be overnight, but what he seeks is an opening of the door to permit some future arrangement. What he would like, being human, is that that arrangement should be put in place as soon as possible.
4. There is no doubt that he loves his son. There is equally no doubt that he cannot at the moment understand why what he thought was a good relationship has so disastrously deteriorated to the point of being non-existent. He puts it down to the fact that shortly after the case started and the contact problems arose the district judge in Worthing made a somewhat unusual order which was that the child should be joined as a party, a solicitor should be appointed to represent the child and there should be permission for an independent social worker instructed by the child's solicitor to have access to the papers and to report. The child did not technically have a guardian. (I will return to that in a moment.) Why the district judge did it was clear when one reads the letter of 31st March 1999 from the child's infant school which shows that the little boy who, on the one hand, appeared to be enjoying the contact he had with his father nonetheless was expressing at school very considerable concerns. Then he was only 7. He was worried about the way in which contact went with his father. He was upset by his parents arguing. He wanted his parents to get on, like all children want after divorce, and wanted them to be friends and said he loved them both. He raised some real concerns. I will not go into detail but they are to be found in this letter.
5. The district judge, understandably, was very concerned about this and thought something should be done. In my view, he took an unusual course of which I am somewhat critical. Perhaps it would be helpful to say at this stage that to appoint a solicitor to a 7 year-old and an independent social worker would seem an unusual course. The more usual course would be to give the child a guardian in the exceptional case where a child in a private law case requires a guardian. The normal course would be for there to be a court welfare officer's report, but now, since April, a CAFCASS court reporter's report. If a report is not adequate the question is should the child be separately represented. That is the issue that Mr W has throughout disputed.
6. In March 1999 CAFCASS was not yet in place. The Official Solicitor would have been the first port of call. I recognise that an order by a district judge might not have been accepted by the Official Solicitor who regularly deals with the High Court and only occasionally with the County Court. There was a system of appointing guardians together with a solicitor on legal aid which had been formulated in different parts of the country and had worked, on a somewhat unofficial basis, nonetheless fairly widely. Today, since we have CAFCASS and since the Official Solicitor's Department has now gone to CAFCASS Legal, the appropriate way to deal with a difficult case where the child needs separate representation - and the court, district judge or judge, must be very certain that it is a suitable case for separate representation - is first to go to CAFCASS Legal, invite CAFCASS Legal to provide a guadian to represent the child and take over the child's case. If CAFCASS Legal chooses not to deal with the case it would be a matter to seek the advice of CAFCASS Legal whether or not it is not a suitable case or whether CAFCASS Legal feel, for a variety of reasons, it is unable to represent the child. In the latter case it would then be appropriate to consider whether or not in modern times it is appropriate that there should be a local guardian and a local solicitor to represent the child.
7. It would be helpful for barristers, solicitors, district judges and circuit judges to make themselves fully acquainted with the CAFCASS Practice Note [2000] 2 FLR 151. Paragraph 4 sets out the general criteria under private law cases. No doubt that will be the useful guide to all of them to consult CAFCASS Legal as to whether this is a suitable case for CAFCASS Legal to take over representation of the child.
8. I would deprecate the use of a solicitor and independent social worker with a child as young as 7. Mr W thinks that is the root of all evil in his particular case. I do not believe that to be so. I think there were more deep-seated problems exposed by the school. I do not think the school was just operating to the machinations of the mother, nor did His Honour Judge Lloyd or His Honour Judge Anthony before him. There are problems. Whether or not those problems have been exacerbated by the very conscientious approach of the independent social worker, who has seen this child on a very considerable number of occasions and over a period when the child was not seeing his father, I do not know. In fairness to the independent social worker he was doing what the court asked him to do and he could not have done very much less.
9. His Honour Judge Lloyd dealt with the latest part of this case on 1st March 2000. Again, it was a long and careful judgment. He had six reports from the independent social worker charting an increasingly depressing picture of the child's increasing reluctance to see his father. That, at one level, was rather odd because at page 391 of the fourth report dated July 2000 the boy clearly had a good time with his father and talked about hoping that future visits would be like this one which he had enjoyed. Nonetheless, he has not seen his father since and it is now over 18 months.
10. It is not necessary to go into the whole background. In his careful judgment the trial judge set out his problems. He set out considerable criticisms of the father. Those criticisms are based on the judge having seen the witnesses, heard them give evidence, having read the reports, having assessed the facts and made findings. Mr W would be well advised to read what the judge has said because the judge is a sensible man. He formed a view of Mr W that is not Mr W's own view of himself. It would not do Mr W any harm to wonder - as all grown ups ought to wonder - whether their own perception of themselves is necessarily the perception of others. That also applies to the mother. Is she being as helpful and as positive towards the re-introduction of contact between her son and her former husband as she could be? Is she doing it as a distasteful duty or is she recognising that this child would gain if he could renew a contact arrangement with his father in which he had pleasure in the past? Both parents need to re-examine themselves; everybody does, and they particularly need to do so in the context of this case.
11. Essentially, I agree with everything the judge said in this case up to the point when he felt that the child needed finality. He felt, taking the advice of the independent social worker, that the time had come when the court process should be brought to an end, that the child should be given peace and that there should be efforts outside the Court Service to make things better in the future. I recognise the appalling dilemma in which this very experienced judge found himself in this case. Here was a boy who was setting out strongly what his views were. Here was a father not prepared to accept that the boy's views were valid or that the boy was really expressing the views that the independent social worker said he was and which the judge accepted. Again, Mr W has a real duty to look at what the independent social worker said the boy actually thinks. The judge had a duty to take into account the views of the boy.
12. I will refer to a judgment of mine in Re L, Re V, Re M, Re H [2000] 2 FLR 334 in which I set out (at pages 336, 337, 339 going on to 341) my summary of the distinguished advice given by two child psychiatrists in the group of cases we tried and, in particular, what the consultant psychiatrist said. They set out psychiatric approaches to the principles of contact (at page 346) between the child and the non-resident parent. They saw the centrality of the child as all-important and the promotion of his or her mental health a central issue amid the tensions surrounding the adults in dispute. The psychiatric report addressed the problems of the child who was adamant he did not want to see the parent. Among the factors we were told by the psychiatrists, that as judges, we should take into account is that the child must be listened to and taken seriously. That permeates very much our approach at all levels to child cases. That is an aspect of this case Mr W has not yet taken on board.
13. So the judge was faced with this appalling dilemma and in that area, and that area alone, he went wrong. He should not have taken it out of the court system. He should have allowed for one more try of a different sort to see if it might be possible to get some movement. The father did ask for a child psychiatrist at an earlier stage and was turned down. I express no comment on that save to say that the time does appear to have come when someone with a particular expertise should come in.
14. Lord Justice Thorpe in his judgment, putting this case to the full court on 26th September 2001, made that very point and suggested that there had not been further and broader efforts taken to try and get something moving because, by and large, the parties are not seriously in disagreement.
15. It is not necessary for me to go into greater details. But I would like everyone to understand that to ask a mental health professional to come in at the discretion of CAFCASS Legal is not, itself, the resolution of the problem. All that can be done by experts is, first, to identify the problem and, secondly, to make suggestions as to the solution. At the end of the day it is for the parents - and possibly some help for the child - to be able to resolve these issues having been given good advice that they ought to take.
16. At the end of the day this father is the only biological father this child will ever have. The child has a right to a relationship with his father even if he does not want it. The child's welfare demands that efforts should be made to make it possible that it can be. The father may not have and probably - reading his skeleton argument - does not yet have a real insight into what the problems are. I hope, speaking for myself, that with specialist help from CAFCASS Legal and from a consultant health professional it would be possible for father to move forward and possible for mother to move forward to see how to break the logjam - because she is crucial to this - and possible for the boy to see it as right and proper that he should see his father and not look just at the negative side.
17. Consequently, although I respect the judgment of the judge and I recognise the difficulties he faced, my view is that he gave up too soon and that it is important not to close the door on the litigation because although litigation is undesirable in family affairs sometimes the court process is the only way to move things on. The effect of cutting out the court process in this case was to leave no genuine opportunity for it to move forward.
18. The boy at the moment is receiving cards from his father and occasional presents. He has not responded to any of them. Some have been thought not to be suitable and he has not seen them; others have been suitable. As my Lord, Lord Justice Ward, said in argument, that is not all that courteous to the father. It is important that the father gets not a report so much as an acknowledgement from the mother to the father of the boy's reaction to the presents. My Lord made a suggestion in this case that it would be very helpful in this case if the mother's lawyers would let the father know what the boy would like for his birthday and Christmas. He should get a card and a present, if the father wishes to send it, for birthday and Christmas, not overwhelming but of a modest dimension, and that the boy should be encouraged at least to sign a Christmas card to his father with "Thank you, Dad" on it or something like that. It would be a step forward in both sides.
19. For my part, I would not think it right to close the door. The way this goes forward is nothing like as easy as the father thinks. He must not thank us, as he has been doing, because we may not succeed. We have to hand it over to CAFCASS Legal. We will request CAFCASS Legal to come in. It will depend to a great extent on the father doing his best to recognise that he has some mileage to make up and learning how to be a father to a child with whom he does not live - and a child who has been given the opportunity, and has taken the opportunity, to express his own negative feelings about his father. Those go side by side with what appears to have once been good contact. That seems very difficult for the father to understand.
20. I hope that with the help of CAFCASS Legal, and the very experienced people they have, they may be able to help him to understand and help him to see how to move forward. Consequently, I would give permission to appeal. I would allow the appeal to the limited extent of saying that CAFCASS Legal should be invited to act on behalf of the child, who was made a party but never appears to have been shown as a party. When CAFCASS Legal come in it would be appropriate that the current hardworking and conscientious team who have represented the child in the past would withdraw and perhaps, if it becomes necessary, they should get the appropriate discharge from District Judge Leverson or perhaps accept it through this court.
21. We would ask CAFCASS Legal to accept the guardianship of the child and to start investigating the case as soon after 1st March as they feel able to do so. We invite them to consider the propriety of involving a child psychiatrist or other mental health professional. We give them leave to disclose all the relevant papers to any mental health professional chosen by them and leave to instruct a child psychiatrist or other mental health professional to see
22. all the family, including the extended family, and the child if the child psychiatrist or other mental health professional thinks it appropriate.
23. As my Lord, Lord Justice Thorpe, suggested in his judgment this seems to be a case where it may be possible to resolve the family's problems therapeutically and therefore a mental health professional with a particular interest in family therapy might be the way to go. Having made that suggestion, it is the business of CAFCASS Legal who they choose and not the business of this court.
24. For my part, those are the orders I would approve.
25. LORD JUSTICE WARD: I agree.
26. LORD JUSTICE KEENE: I also agree.
27. THE PRESIDENT: Those are the orders we make. Does anyone want to say anything else? It is desirable that transcripts of this judgment should be supplied to all parties and to CAFCASS Legal at public expense. There will be no costs except legal aid assessment of the legal aid costs.
28. I would like to pay a particular tribute to Mr Smith and his team for the hard work they have done until now. It is no disrespect to them that we are moving into a new dimension.
Order: Application granted