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 THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE JOHNSON)

		Royal Courts of Justice Strand London, WC2
		17th June 2003

1. THE PRESIDENT: This is an application for permission to appeal. My Lords and I have granted permission to appeal and it is therefore the appeal. This is a family case where there have been problems over contact between two girls, who are now 14 and nearly 16, and their father.
2. There is a long history to this case. It came before the Court of Appeal, including myself, on 20th February 2002, having recently been transferred from the County Court to the High Court. On that occasion, in paragraph 13 of my judgment, I invited CAFCASS Legal to become the guardian of these two girls. I also made various suggestions which included the appointment of a psychiatrist or psychologist, in any event a mental health expert, to assist in the problems that had arisen.
3. The father's view has always been that the children have been the recipients of an alienation process by the mother which has prevented the children from following what would have been their normal instincts in having a relationship with their father.
4. The case went back from the Court of Appeal to a High Court judge. There was then a chapter of accidents, the date of the hearings were not made available to various people. CAFCASS did not know what was going on. CAFCASS Legal has also had its problems, as indeed CAFCASS generally has. But one way and another it was not until November 2002 that the mother, the father and CAFCASS Legal were all at the same place at the same time before the same judge. On that occasion the father was taken completely by surprise by the suggestion of CAFCASS Legal in a position statement and by counsel which had only been provided to the judge and to the father, who is a litigant in person, at the day of the hearing. The suggestion was that it would be sensible, bearing in mind that the elder girl will be 16 in August 2003, that the order in respect of her should be brought to an end.
5. The girls have been expressing views quite strongly that they did not want to talk to the guardian. They did not want to be involved in the case. There also appears to be some ambivalence by the girls, who on the one hand were indicating to the guardian they did not want to see their father, but on the other hand have actually been in touch with him. I think I speak for the whole Court of Appeal in which I say we are delighted to hear that they did actually spend part of Father's Day, last Sunday, with their father and their two older sisters who are now grown-up.
6. The facts of this case were set out in some detail in my judgment of 20th February 2002. I do not propose therefore to set them out again.
7. The father is, as he puts it, incandescent over the way in which this case has come to the Court of Appeal and the, as he sees it, manifest shortcomings of CAFCASS Legal. It is not appropriate for us to hear what would in effect be the prosecution case, the defence case and then a decision of this court as to whether or not the allegations made by the father, resisted by CAFCASS Legal, have merit or any of them have merit, save to say that one way and another we are 15 months on from the judgment of the Court of Appeal in February 2002 and very little progress has been made. It is not the job of this court to allocate blame in a family case, where the welfare of the children is paramount unless it is necessary for the furtherance of the case. We are more concerned with that welfare and trying to move the case forward.
8. Speaking for myself, I am acutely aware that these girls are growing up, 14 and nearly 16. They clearly have some relationship with their father and clearly want to see him from time to time. It is not possible to tell what that relationship is from the papers as they stand since there is no report of the guardian and there has been no mental health expert in the immediate past who has been in any way involved with these girls. That might be good rather than bad, but it leaves this court, as it left the trial judge, without sufficient information to know what is inhibiting the girls from a normal contact with their father. Is it their own free thinking? Is it the influence of the mother? Is it that they have been turned? Is this relevant now, since they are nearly 16 and 14. What is much more important is to try and facilitate a relationship between the father and his teenage daughters, and indeed with their elder sisters who are grown-up and now on good terms with their father. It is much more important that they should have their father easily accessible, someone to talk to in an easy way, over another part of the formative period of their lives: i.e. as they grow out of their teens and into their early twenties and so on. There is a chance here that these children and their father might have a rewarding relationship with each other, to the benefit of the girls and to the benefit of the father and the father's new family, which is of importance not just in the next six or nine months, but I hope for many years to come.
9. Some push must be made to see if this is possible, because if it cannot be done everybody in the family will be a loser. Therefore it is worthwhile trying again and trying in a new way. I recommended in February 2002 that CAFCASS Legal should have leave to instruct a mental health expert, a psychiatrist or psychologist, with a view to looking at the entire family to see whether there was any way out of the problems. At this stage, 15 months on, I would like to see CAFCASS Legal instruct an expert, psychiatrist or psychologist, with proper family-based experience and with experience in and some sympathy for the mediation approach to try to see what could be done in discussion with the parents, and any other members of the family who wish to be involved excluding the children, to see what could be done to facilitate future relationship between the father and the girls. The purpose of inviting a psychiatrist or psychologist is not so much to bring the matter back to court with a report with a view to the court making a decision. I very much hope that the cost of such an expert (to be borne by CAFCASS Legal) would be to obviate the expense of coming to court, to cut out the need for further court proceedings and to give some sort of indication of a way forward for the family to facilitate this relationship between father and daughters. I look for the expert to be engaged in a facilitative mode, rather than an enquiry and assessment mode. Clearly the enquiry and assessment is necessary for the expert to form his or her view as to the best way forward. But I very much hope that it would not be necessary for a report to be written formally for a court to have to have to adjudicate. I bear in mind particularly that under section 9(6) of the Children Act 1989 it is not usual for the court -- indeed it is exceptional for the court -- to make any order in relation to contact after the child reaches the age of 16. So we have quite a short period with the elder girl before an order would inappropriate, but we have two years with the younger girl. Clearly the girls must be looked at not only separately but also together. Anything that would help the elder girl is as important as whether or not there should be an order. I bear in mind also that section 1(5) of the Children Act enjoins a court not to make an order unless it is better to do so rather than not to have an order. I would like to think this was a case where it was not necessary.
10. So I look to the experts, speaking entirely for myself, to help this family to go forward, rather than to come back to court and tell us how to manage the case. If it is not possible for that to happen and if one side or the other way wishes to come back to court, we will make available in the Family Division another High Court judge who will be responsible for the case.
11. The order that is proposed to be made is that the appeal will be allowed to the extent that the father's applications for contact to his two daughters will be reinstated, but they will be adjourned generally. I am satisfied for my part that it was an unsatisfactory process for those two contact orders to have been brought to a close in November and December 2002. But I very much hope that there will be no further applications on contact in the future, if we are all lucky enough to get another route to this relationship being facilitated with the father.
12. There will be an order allowing the appeal and reinstating his applications, but to be adjourned generally. CAFCASS Legal will draw up an appropriate list of experts and that they will let the mother and the father have the list. Both parents must be very careful not to turn people off the list for other than good reasons, and must reply within three weeks of the time that that list is provided to them. I think it is very important that this is not a matter to be hurried, because we are looking at the lifetime of the family and not the next six months. Consequently, if the expert that everybody wants is not available to look at the papers for three months, that is not a reason for turning that expert down. It is more important to go slowly but to get the right person because this will be in any event a slow process. However we do know that the girls are in touch with their father and that they saw their father on Sunday. So there is no reason why they should not remain in touch with their father and this should be on a totally informal basis. It may be if it is working well the job of the expert will be much easier than it might otherwise be.
13. Those are the reasons why, in my judgment, this appeal should be allowed to that limited extent. I do not think it profitable, bearing in mind we are trying to move forward, to investigate what went wrong and who was to blame for the past.
14. LORD JUSTICE CLARKE: I agree.
15. LORD JUSTICE SEDLEY: I agree.

ORDER: Application for permission to appeal granted; appeal allowed to the limited extent that the father's applications are reinstated but adjourned generally; transcript to be provided at public expense to the mother, the father and CAFCASS; no order for costs; counsel to lodge a draft minute of order.

(Order not part of approved judgment) ______________________________