IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHICHESTER COUNTY COURT
HIS HONOUR JUDGE BARRATT
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE MAURICE KAY
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IN THE MATTER OF B (A CHILD) |
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Smith Bernal Wordwave Limited
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MR H TRAVERS (instructed by Messrs Glanvilles, 13 East Street, Havant, HAMPSHIRE PO9 1AA) appeared on behalf of the Respondent.
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Crown Copyright ©
"Where a child was effectively denied or inhibited from an ordinary relationship with her father by the determination of her mother to excise her father from her life, the court should never abandon endeavours to right the wrongs within the family dynamics. The order made by the judge gave the wrong message. This was not a case in which the father had in any way abused the family justice system so as to disturb or undermine the mother's primary care. The judge had specifically found that the father had acted responsibly in pursuing his desire for an ordinary relationship with his daughter by contact applications."
The court accordingly substituted a shorter period of two years for the five which had been imposed by the judge.
"Ms Chapman agreed with my analysis that Mr B has never behaved in such a way as to justify his total exclusion from the life of his child. I wondered – given [S's] age and the longstanding contentious nature of the proceedings – whether [S] would benefit from separate legal representation. Ms Chapman said she would give consideration to this suggestion."
That, however, as I understand it, is not a consideration which has been expressed in any way in writing. Her report, of course, substantially antedated the conversation.
"The facts of the current problem with which the Court is currently concerned is the intractable hostility of the mother. This is evidenced today, in her opposition to any route which could be explored by Dr Dale. Another factor that has greatly militated against that is the child herself has expressed the clear and definite unwillingness to entertain contact with her father. The third factor is what the child has seen and heard. That may have caused her to have the view of her father's personality that she has.
"Suffice to say, what I said in 2003 about the problems with Mr B's personality. As an example, take the statement made by Mr B in support of this application. Paragraph 15 refers to the absence of compensation for the trouble and costs incurred in the preparation of the video. This video was shown to the child. It allowed the child to form a view, to form an opinion of her father. The decision I have to make is, in view of Dr Dale's advice, what is the viability of re-introducing direct contact, the timetabling and the cost. This option, however, is not supported by the mother."
"In my judgment, if I pursue the possibility of the separate representation, it seems to me there will be a real risk of de-stabilisation. It will not be respectful to the child's wishes. There are continued opportunities for indirect contact, which should be encouraged, and it seems to me that subject to the decisions that I have made it is not in the bests interests for [S] to have separate representation. All indications are that direct contact is going to be very difficult. I see no purpose in there being separate representation. I say this with great sadness and hesitation. I do not propose NYAS or CAFCASS as separate representation, as on the face of it, the position is very clear.
"The Father may not pursue his application on this occasion. He can come back on any occasion when it is sensible and reasonable to do so, and continue the approach of indirect contact in the form of videos and cards etc. He should not expect any compensation, if he was to approach the matter sensibly".
He then says to Ms Waddicor directly, "I am afraid I am against you."
Order: Appeal allowed.