England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWPORT COUNTY COURT
(Her Honour Judge Case)

		Royal Courts of Justice Strand London WC2 Tuesday, 21st May 2002

1. LORD JUSTICE THORPE:The proceedings in the Cardiff County Court between KF ("the father") and MK ("the mother") have been ongoing for several years now and the proceedings all relate to their single child, H, who was born on 15th November 1994. She is therefore seven. The parties are respectively 37 and 34 years of age. They commenced a relationship in 1990, cohabited from December 1992 and separated in October 1996. The cause of the final separation was a violent assault on the mother by the father and it was the culmination of a good deal of unpleasant violence on her that characterised their relationship.
2. The problem of contact accordingly arose almost immediately and on a relatively grand scale. Early progress was achieved through a contact centre and the involvement of the paternal grandparents. However, there was contact regularly at alternate weekends and on Thursdays between April 1998 and July 1999. The accord dissolved in July 1999, when the father proposed that the venue should switch from his parents' home to the home that he had established with his new partner, named M. That led to a hearing in front of District Judge Wyn Rees, who heard three days of evidence and delivered a very full judgment in December 1999. He made clear findings that violence between the parents had ended with their separation; that thereafter, although the father had from time to time abused and bullied the mother verbally, it was in response to his frustration at the breakdown of the arrangements for his meetings with his daughter. The judge therefore made clear orders to establish a pattern of contact for the future.
3. The mother had said in the course of her evidence that she did not intend to comply with an order of the court. She stood by that statement thereafter and inevitably enforcement proceedings were initiated and progressed in the county court, with a number of hearings before the designated judge, His Honour Judge Philip Price QC. Arrangements were made for a hearing of the committal application, which in the event was listed before Mr Recorder Bishop QC in July 2000. He dealt with the case very firmly and made it plain that, unless the mother complied with the court's decisions, she would find herself behind bars. The mother applied to this court for permission to appeal and Mr Levy QC complained strongly of Mr Bishops' conduct. However, his application for permission did not prevail and the order made by the recorder stood. It certainly seems to have been effective to the extent that contact resumed between July and January 2000, this time on a more extensive basis and at the father's own home, where of course H came into contact with M and her two children.
4. In January 2001 there was another contested hearing before Mrs Recorder Parry (now Her Honour Judge Parry). The judge found as a fact that over the preceding six months contact had gone reasonably well and that there were perceptible signs of an easing of the tension between these two parents. Accordingly, she made a cautious extension of the provision for future contact, leading to a two-day stay, which I take to have been during the course of the school half-term in February 2001. Unfortunately, the father seems not to have managed this first essay of the extension very sensibly. He apparently discouraged or prevented H from telephoning her mother during the visit, as a result of which once again the mother broke off the contact arrangements.
5. Accordingly, the father issued a further committal application and also applied for a residence order. The cross-application from the mother was for contact to be terminated. Again Judge Price dealt with the interlocutory proceedings, and seemingly dealt with them firmly, and provision was made for a trial in July. Unfortunately the pressure on the lists in the Cardiff County Court made it impossible for the court to find time for the trial and, presumably through sensible local arrangements, the case was transferred to Newport, where it was listed in front of a judge of that court, Her Honour Judge Case.
6. All this was undoubtedly imposing a great deal of stress on the parents. Mr Levy tells us that shortly before the fixture on 19th July his client had to be admitted to hospital with a suspected heart attack. Mr Jenkins QC tells us that his client broke down under the stress of the proceedings halfway through day two and had to be admitted to hospital. In the event, the trial obviously could not be completed. The judge obtained from the father his assent, no doubt sensible, to abandon his application for committal and to rely only on his application for residence. The other development was the judge's request for CAFCASS Legal to appoint a guardian, which of course is an unusual step in a private law case. Fortunately, her request was granted and H has had the advantage of her guardian in the subsequent stages of the case. The judge also refused Mr Jenkins' application for leave to instruct a forensic psychiatrist to deal with reports that the mother had filed from Dr Jamil which established a diagnosis of post-traumatic stress disorder. The judge, however, instead appointed a court expert, Professor Maguire from Manchester, upon whom she relied to deal with this dimension of the case. She also made it plain that on the next occasion she would require the opinion and the help of a consultant child psychiatrist. In the event, the guardian, having accepted her appointment, instructed Dr Martyn Gay.
7. The case apparently could not be relisted until January 2002, but at least by the time the matter came on for hearing the judge had the assistance of written reports from a very experienced guardian ad litem, from Dr Martyn Gay and from Professor Maguire. On the first day of the hearing, which was 28th January, she also received a further report from Dr Jamil which was dated 20th January. It had only been disclosed to Mr Jenkins that very morning, eight days late, and he took objection to it. In the end, the judge admitted that document. In doing so, she said this:

"What I am suggesting is simply that that report, for what it is worth, is shown both to Dr Gay and Professor Maguire solely on the issue of what treatment, because Professor Maguire is talking about treatment, Dr Gay says he leaves that aspect, really, to Professor Maguire. As I say, I am not interested so much in the diagnosis that Dr Jamil makes but I am interested in what the plans are for appropriate treatment and she does seem to deal with that and gives a six months period. It seems to me that is information that I would like both the court experts to see and to consider."

8. Despite Mr Jenkins' criticism, it does not seem to me that that ruling from the judge at that stage of the case is open to criticism.
9. The judge heard evidence over the course of that day and the following day, and all the evidence has been transcribed for us. She gave her judgment on Tuesday, 5th February, and the order which was drawn to reflect that judgment provided as follows:

"1.The father's application for residence be refused.

2.The father's application for direct contact with H be suspended for a period of 18 months from today.

3.In the event of an unsuccessful appeal the said period on the suspension shall be from the date of the determination of the appeal.

4.Reasonable indirect contact to continue."

10. Then there were provisions for the release of papers for the purposes of treatment and a requirement on the mother's solicitors to serve treatment reports in August 2002 and February 2003. The judge refused the father's application for permission to appeal and reserved the case to herself.
11. The application for permission to appeal was considered by me on paper, and I directed an oral hearing with the appeal to follow if permission granted, with a time estimate of one day. Today is that hearing and, at the outset, we gave Mr Jenkins his permission. We have heard full submissions from him, from Mr Levy and from Mr Anthony, who represents the guardian ad litem.
12. This has not been a particularly easy case for this court since there are a mass of documents compiled from a long litigation history, not all of which have been copied for each member of the court. We have also struggled to understand what precisely was the role of Dr Jamil in this case. Was she simply another forensic expert, or was she in a patient relationship with the mother? We have also struggled to understand what has been going on medically: what treatment has the mother received over the course of the last 12 months; from whom; and why is it that she has not received the treatment that was apparently identified as necessary at the January hearing? We have been told by Mr Levy today that only yesterday did she eventually see the cognitive behavioural psychotherapist who had been identified during the course of the hearing as being the relevant local professional. He is Mr Neil Kitchener of the University Hospital of Wales. We are told by Mr Levy that, as a result of his assessment yesterday, he has accepted the mother as a suitable patient, but has said that she will not commence her treatment for three or maybe even six months. We do not know who referred the mother; we do not know when the letter of referral was written; we do not know why it has taken some three and a half months for the mother even to be assessed. So all that is very unsatisfactory.
13. The delay in the provision of treatment was specifically noted by the judge in February. She said that the mother:

"...has approached the health authority and complained at the lack of assistance that she is getting, and in my judgment, rightly so. Professor Maguire thought what she had received was wholly inadequate."

14. Mr Levy tells us that his instructing solicitors some eight or nine months ago received public funding to issue judicial review proceedings either against the local health authority or the local social services authority, but apparently those proceeding were abandoned when some sort of agreement was made for future progress. It is, in my opinion, a matter of real concern that this treatment, which has been clearly identified and precisely defined, has been so significantly delayed. Not only is the mother the victim of that delay but, indirectly, so too is H, who obviously depends essentially on her mother's well-being, and so also is the father since all the expert evidence in the court below has agreed that the resumption of this fractured contact should not commence before the initiation of treatment.
15. I will now endeavour a brief summary of Mr Jenkins' submissions. He has filed a very full skeleton argument dated 20th March in which he expands 13 detailed grounds of appeal. I do not intend to record or assess all of them, partly because we have not had sufficient opportunity at this one day hearing to investigate some of his lesser complaints, and also because this judgment has necessarily to recognise that we have already reached, and exceeded, the ordinary length of a court day. I am therefore going to concentrate on three of Mr Jenkins' grounds, two of which are closely interrelated.
16. Grounds 4 and 5 really assert that the judge either misunderstood or misstated the all-important evidence of Professor Maguire. At p.18C of her judgment she said this as her summary of Professor Maguire's position:

"He said after a preliminary period of treatment and therapy to help the mother work through the issue, it could be beneficial to introduce some very limited contact, providing there was no threat of escalating it."

17. Then at p.28A she said:

"Dr Gay listened and considered Professor Maguire's suggestion of a tiny amount of contact, say an hour a month. However, I must consider not what is in the mother's interests, because that really was put forward as part of the mother's therapy. It was not so much for the benefit of [H] but to enable mother to complete the therapy. I have to consider what is in [H]'s interests in accordance with section 1 of the Act."

18. In relation to those passages Mr Jenkins submits that there is a plain judicial misstatement since Professor Maguire had never suggested "a tiny amount of contact, say an hour a month"; and he refers specifically to passages in the transcript at pp.46, 53, 55 and 61. In the interests of economy, I will endeavour to be selective. Professor Maguire faced this cross-examination by Mr Jenkins:

"Q.And if in the period between April 1998 and July 1999, mother was able to tolerate contact and indeed the parties were easing their relations so that tensions were subsiding, that is an important factor, is it not?

A.Yes. I mean, I thought there was an improvement in that period, too, in respect of the syndrome we're talking about.

Q.So it may be, Professor Maguire, that there would be assistance to be gained in terms of the improvement of mother's condition if we now went back to what the contact had been prior to July 1999? Would that be of assistance to her in your view?

A.Well, that's why I said earlier that I thought, along with Dr Gay's report, the limited contact would be of assistance."

19. Equally, by ground 5, Mr Jenkins complains that the judge failed to understand, or failed properly to record, Professor Maguire's view that if contact were introduced at the same time as psychotherapy it would advance the prospects of treatment rather than the reverse. He referred to four passages in the transcript at pp.47, 49, 56 and 59. Again in the interests of economy, I will cite only the passage at p.56, where there was this cross-examination by Mr Jenkins:

"Q.Another matter you were asked about by Mr Anthony, if contact was restricted or even eliminated at this stage, you told Her Honour that it would be unlikely that she would ever be able to relinquish her fears was the word, or her feelings about Mr [F]?

A.I don't think she'd completely get rid of her symptoms.

Q.So it might be positively to her advantage to have a pattern of contact?

A.Yes, I think so, yes."

20. Turning to the judge's appreciation of the evidence of Dr Martyn Gay, Mr Jenkins refers us to pp.19-23 in the judgment, during the course of which the judge recorded and elaborated a number of conditions that Dr Gay identified for the successful re-establishment and extension of the contact relationship. Mr Jenkins' complaint is that the judge nowhere in that passage sufficiently records the all-important positive dimension of Dr Gay's opinion, namely that it was important to re-establish contact from a realistic, if unambitious, base, which could then be carefully extended, hopefully over the course of two or three years, to revert the relationship to the position achieved prior to the collapse in February 2001. Mr Jenkins refers to passages in the transcript at pp.69, 72, 78 and 81. Again I cite only a single passage at p.72 for the purposes of this judgment. Dr Gay, in answer to Mr Anthony, dismissed the possibility of overnight stays at present. He said:

"... I think that's something that will need some sensitive fine-tuning and I would say probably [H] is the person to help that forward. I'd rather start with something which is harsh, practical and realistic and built up than perhaps start at what might be just the ideal and find that one has difficulties built into the system because of that."

21. Mr Levy has sought to stress a passage in the evidence of Dr Gay in which he was asked to consider the hypothesis that the father would not be able to meet any of the preconditions that Dr Gay identified. Dr Gay, in answering that hypothetical question, accepted that if the father proved absolutely intransigent over the passage of time it might become necessary to abandon the search for direct contact. But he emphasised that in his view that stage had not been reached and that the important thing was to move forward, as it were creatively, to try to re-establish the relationship. The judge pressed Dr Gay on several occasions as to what it was he could identify for the father to achieve in order to demonstrate his acknowledgment of responsibility for the past violence. Dr Gay could identify nothing within what might be called local support services, and in the end advised the judge of the therapeutic potential of a strongly worded judgment which confronted the individual with his responsibility for past bad conduct.
22. The only other aspect of Mr Jenkins' submissions that I want to refer to in this summary is ground 6, his fundamental complaint that his client did not receive a fair hearing in front of this judge. He points to the fact that from the judge's first observations at the aborted trial on 19th July thereafter the emphasis shifted from the entitlement of father and child to a relationship - and from any acknowledgment of the cost to father and child of significantly extending the interruption in their relationship - to a concentration upon the mother's psychiatric state, which all previous judges in the Cardiff County Court had weighed as being of secondary significance. Mr Jenkins complains of the way the mother was permitted to put in very late evidence from the expert of her choosing, whilst he was denied the opportunity to instruct an expert of his choice.
23. Mr Jenkins particularly complains of the judge's intervention at a time when consideration was given to the mother's capacity to give live evidence. He refers particularly to the exchange between himself and the judge at p.169 of the transcript, when the judge said:

"... I have had an experience once before, Mr Jenkins, of allowing you to cross-examine a delicate witness and it did not actually work to your advantage in the end, I seem to remember, because the witness was so upset she fled from the building."

24. Mr Jenkins attempted to say:

"That is a completely different situation ----"

25. The judge continued:

"It may or it may not be, all I know is that there was somebody there who was highly sensitive to serious cross-examination, which I know is your normal style because you are more familiar with a jury setting."

26. Mr Jenkins said that that was not fair; he had been doing family law in the courts for 30 years. The judge said that he might have done, and continued:

"... I am not saying you have not. I am sure you are absolutely right about that, but your technique for cross-examining witnesses in the family court is not my idea of how it should be done."

27. Mr Jenkins says that he was put in a very difficult position and obviously it impacted on his professional relationship with his client to the extent that he had to seek instructions as to whether his client would prefer his junior, Mr Furness, to continue the case.
28. There are other criticisms raised by Mr Jenkins which include the judge's failure to advert to H's wishes, her failure to explain her reasons for rejecting the advice of the guardian ad litem and her failure to refer to the evidence of the father's other witnesses, particularly M, who had been highly assessed by the professionals in the case. These criticisms are not without validity but it is unnecessary for me to do more than record them given the conclusion which I have reached on grounds 4 to 6.
29. Mr Levy has answered those submissions by advancing seven limbs. He emphasises, first, that the father's case in the court below was always unreasonably ambitious. He had sought the almost immediate resumption of the level of contact that had existed prior to February 2001. Mr Levy says that the pivotal point in the case was his evidence, which was delivered in a manner so extreme as to justify the judge's extremely pessimistic assessment of the prospects for reintroducing contact. Secondly, he stresses the three conditions identified by Dr Gay. He says, thirdly, that the evidence of Professor Maguire must be seen in that context. Fourthly, he urges the principles or guidance given by this court in the four conjoined appeals the subject of judgment on 19th June 2000, Re L, V, M and H [2000] 2 FLR 33. He says that the approach of the judges in the Cardiff County Court had not taken proper account of the medical evidence as to his client's psychiatric condition. Fifthly, he says that those earlier proceedings never recognised child separation anxiety, which was a condition identified in H by Dr Gay. Sixthly, he says that this was a global balancing exercise carried out by the judge and the conclusion she reached cannot be said to have exceeded her broad discretion. He says that she was perfectly right to assess the futility of monthly contact as something that would exacerbate the father's anger and frustration. That of course is derived from the passage in the judgment at p.28 that I have already cited. Lastly he says that there was no unfairness and no irregularity in the proceedings; and if any, certainly not such as to nullify the outcome. He says that the judge was plainly entitled, in the exercise of her discretion, to spare the mother from giving evidence from the witness-box; and the judge was perfectly entitled to accept that the father was guilty of at least four acts of serious violence against the mother in the period preceding the final separation. She was entitled to reach that conclusion without oral evidence from the mother, given the clarity of her witness statements, the corroboration in the medical reports and the fundamentally unsatisfactory character of the father's oral evidence.
30. Mr Levy, in advancing his second limb in response, presses the passage in Dr Gay's evidence to which I have already referred without direct citation. It is to be found at p.86 of the transcript, and the important words for me are to be found at letter F, when Dr Gay said:

"If, in your most pessimistic scenario, it is not possible in this particular case for father to move forward, then one would probably have to recognise that one would accept that under those circumstances, and in a sense that's a contribution coming from him that it would not be possible to pursue the contact, but that's something that I would avoid at this stage, and I think it is so much more important from the child's point of view to try and concentrate on constructive ways forward."

31. In advancing his argument in support of his sixth limb Mr Levy relies upon the following passage in the judgment below where the judge justifies the rejection of monthly contact on the ground that it would only serve to exacerbate the father's anger and resentment:

"One hour once a month is probably not going to be realistic for [H], and will certainly exacerbate father's anger and frustration, which has been a feature throughout. In my judgement, it will lead to further intimidation of both mother and [H]."

32. There are two answers to that point. The first is that there was no foundation in the expert evidence for the judge's assessment. The second is that it is quite unsupported by the father's evidence when cross-examined by Mr Anthony as follows:

"Q.If Her Honour were to make an order which allowed a very limited amount of contact I take it you would go along with it?

A.I am not going to turn down a chance to see my child, no, but I don't believe it would be beneficial to have like once a month a couple of hours. How can you build a relationship when the child has not seen you for a year in just once a month? I believe it would be more beneficial for mum in the long run if I was seeing her once a fortnight and giving her breathing space, giving her time to herself as well, and in coincidence with any treatment she's going to receive, as the doctor suggested yesterday.

Q.I can understand, Mr [F], why you are impatient, but ----

A.I am not impatient. It is just six years nearly, five and a half years. It is not impatience. It is just expectations which should happen after that amount of time."

33. Mr Anthony has adopted a most helpful position. He has filed a skeleton in which, although accepting that criticism of the judge is in some respects due, he seeks to uphold her broad conclusion, although doubting whether a moratorium of 18 months was appropriate. In the light of Mr Jenkins' reduction of his client's target in this court to reinstate contact one day a month with any subsequent extension to be the subject of agreement or judicial management, very much along the lines of Dr Gay's opinion, Mr Anthony has adopted a position of something approaching neutrality, although certainly not supporting Mr Jenkins' position.
34. Where, then, do these submissions lead me? I am quite satisfied that the judge has not sufficiently reflected the view of Professor Maguire in her analysis of the evidence. It is true that in the end she identified a conflict between Professor Maguire and Dr Jamil. She said at p.30:

"Whilst Professor Maguire's evidence is determinative of diagnosis, Dr Jamil gave evidence about treatment for the mother. She fundamentally disagreed about the idea of using trial contact before the mother had concluded her treatment. Of course, unlike Professor Maguire, she had sat and listened to the whole of the father's evidence and in assessing the appropriateness of such a course she was better placed. I am not prepared to subject [H] to any high-risk strategy."

35. I have misgivings as to the security of that approach. First of all, we have to remember that Dr Jamil's role in the case had been identified by the judge, at p.6 of the transcript, as subsidiary. Then we have to notice that the prior collaboration between Professor Maguire and Dr Jamil had been very limited. When asked the question by Mr Levy at p.153:

"What did you understand was Professor Maguire's view?"

her answer was:

"He said that maybe some limited contact. He did not specify any more than that, just some limited contact. He gave me the impression as if he was thinking loudly, `Maybe some limited contact.' He did not firm his views, if you see what I mean, and then he sort of thanked me ----"

36. That is hardly an appreciation of Professor Maguire's view that the mother's improvement after April 1998 may well have been in part contributed to by the regular contact then in place, and his further opinion that her future treatment would be positively assisted by a contact regime.
37. Then, as my Lord, Lord Justice Waller, has pointed out, when Dr Jamil was subsequently cross-examined by Mr Anthony for the guardian and Mr Anthony put the question:

"You would not be suggesting that Professor Maguire's approach is necessarily the wrong one?"

she answered:

"No, no, no. I think -- I am not for a minute suggesting that."

38. When the judge asked her about Professor Maguire's suggestion of monthly contact, all Dr Jamil said, at p.175, was:

"As I say, it is just when I see somebody, I would -- you get a feeling about what sort of things would work and what sort of things would not work with them. It is just a hunch on my part that this is going to fail."

39. It does not seem to me that that was a sustainable foundation for the judge's preference of Dr Jamil's recommendation.
40. Equally, I am satisfied that Mr Jenkins makes good his complaint that the judge has not properly understood or, alternatively, has not properly recorded the essential theme of Dr Gay's evidence, which was that the realistic, if harsh, future management was to start at the bottom again and build up slowly, allowing H to take the major steps.
41. Of course, the judge was inevitably influenced by Dr Gay's view that a harsh judgment could have a beneficial therapeutic effect on somebody who had been guilty of quite unacceptable and unacknowledged past violence. But the judge's management, namely to follow judgment with a period of 18 months of nothing, hardly allowed much room for that therapeutic possibility to take effect. I do not think the judge sufficiently understood or reflected the facts that this father had both been bereft of contact and reasonably pursuing his litigation remedies since February 2001. To add to the 12 months that had already run a further period of 18 months was to import the risk that at the end of that period there would be so little left of the relationship between father and child as to make regeneration difficult or impossible.
42. I have some misgivings about the judge's further direction that, if the father exercised his right to apply to this court, the period of suspension should run from the determination of the appellate proceedings. Although I understand the judicial rationale, it seems to me that it gives to the recipient the impression that he is being induced not to pursue his remedy.
43. So for all those reasons, and coming to a conclusion, I think that the judge was wrong to arrive at the discretionary conclusion that she did and I do not think the error can be rescued by Mr Levy's submissions. There is such a stark contrast between the judicial approach throughout the period this case was litigated in the Cardiff County Court and the judicial approach once it was transferred to Newport that it inevitably raises questions, certainly in the mind of the applicant father, as to whether he has received consistent and fair judicial determination.
44. With the advantage of hindsight it is possible to read all sorts of lessons from this case. There has been an absence of judicial continuity even when the case was in the Cardiff County Court, although seemingly the various individual judges adopted a very consistent approach. There has been unfortunate and, in my view, unacceptable delay in the determination of the issues that arose following the mother's withdrawal of contact in February 2001. There has been a failure to bring the experts in the case together well in advance of the fixture to ensure that they discussed thoroughly their respective opinions and endeavoured to arrive at some consensus. It can, of course, be said that the fundamental landscape changed with the decision of this court in June 2000 in Re L, V, M and H. But that shift in the landscape came well before the final contested hearing in the Cardiff County Court conducted by Mrs Recorder Parry.
45. Of course it was open to this judge to take her independent line and to elevate to a position of primary importance medical issues that at earlier hearings had been regarded as of secondary importance. Of course it was incumbent upon this judge to give full reflection to expert opinion, particularly from Professor Maguire and Dr Gay, that was not available to judges sitting in the Cardiff County Court. But nonetheless, it seems to me that there was some obligation on this judge to have greater regard to the extent to which this father had pursued his legitimate rights without ever seeming to seize his own remedies. It was incumbent upon her to have some regard to the fact that the consistent judicial management in the Cardiff County Court had been to promote, albeit by slow and possibly painful stages, the development of a relationship between father and child; and it was incumbent upon her to have some regard to the fact that that consistent judicial management had been, at least superficially, successful. Of course Mr Levy emphasises that it may be at great price to his client's continuing psychiatric condition. But nonetheless, all these were factors of relevance and they do not seem to achieve any reference in the judgment below.
46. Having reached that fundamental conclusion, in my view the judge erred in making the order she did. The question is what we should order in its place. Reverting to the order as drawn, I would delete paragraphs 2 and 3 and, in their stead, write a provision that the father do have direct contact to H for one day a month, such contact not to commence until the inception of the mother's psychotherapeutic treatment with Mr Neil Kitchener. I would further delete the reservation of the case to Judge Case in paragraph 9 and write instead that the case be transferred to the Family Division, to be listed before a judge of the Division. I would further direct that the parties forthwith make application for a date for a hearing before the judge, at least to enable him to give directions as to future management. I would also direct the mother to file within 28 days a full statement recording precisely what treatment she has received over the course of the last 12 months and to explain what steps have been taken to initiate the therapeutic relationship with Mr Kitchener, and to substantiate that statement with the relevant medical records. I would express the hope that the attention of the Department of Psychiatry at the University Hospital could be drawn to this judgment, and I would request Mr Kitchener to see whether he could possibly prioritise the mother's treatment, if that can be achieved without prejudice to others who may be equally urgently in need of treatment. It is a matter of real concern that the restoration of the relationship between father and child seems to be at the mercy of delays in psychiatric services in the National Health Service. That is the order I would propose.
47. LORD JUSTICE WALLER: I entirely agree with the judgment of my Lord. Despite the lateness of the hour, I would, if I may, shortly emphasise the last point that he made. H has not had contact with her father since February last year. I am in agreement with my Lord that contact must be resumed as soon as possible, but only when treatment of the mother has commenced. I of course recognise what pressures there are on the National Health Service and those providing treatment thereunder, and I recognise that we may not know the full history of the mother's referral and why she has only recently been assessed. But, like my Lord, I view with alarm the present suggested timescale for receiving the cognitive therapy. The mother is suffering from PTSD. Court proceedings evidently exacerbate that condition. It is clear that the proceedings in this court, including this judgment, may exacerbate that condition. It must be very urgent, in the mother's own interests, that she receives treatment as soon as humanly possible. Furthermore, as my Lord has pointed out, it must also be in the interests of H, who resides with her mother, that the mother is treated expeditiously. Since contact cannot start until treatment has started, that treatment is urgent, so that the gap in contact between H and her father is no longer than necessary. I echo my Lord's feelings that these judgments should be drawn to the attention of those having control over the mother's treatment.
48. LORD JUSTICE BUXTON:I agree with both judgments.
Order: appeal allowed; father to have direct contact for one day a month, not to commence until start of mother's treatment; case to be transferred to Family Division and listed before a judge of the Division; directions given as set out in last para of judgment of Thorpe LJ; public funding costs assessment for the appellant father and the respondent mother.