COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (COVENTRY DISTRICT)
(HIS HONOUR JUDGE BELLAMY)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE RIMER
| S (A Child)
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Ms Alison Ball QC & Mr Oliver Peirson (instructed by Morrisons) appeared on behalf of the First Respondent, the father.
Mr Justin Slater (instructed by NYAS) appeared on behalf of the Second Respondent, the child by his Guardian ad Litem.
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Lord Justice Thorpe:
"In arriving at the decision not to adjourn to enable Dr Weir to be recalled I had in mind a number of factors. In particular I have received a substantial amount of evidence from Dr Weir, both written and oral, upon which I was satisfied that A has suffered harm and is at a risk of future harm, as discussed for example at paragraphs 80 and 81 of this judgment. I was satisfied that Dr Weir's evidence also enabled me to come to a conclusion about the distress that A would be likely to suffer if I ordered residence be transferred to the father as to whether that distress would likely to be of a magnitude that would cause him harm: see paragraph 76 and 82 of this judgment. In deciding whether to adjourn to enable Dr Weir to be recalled a balance has to be struck between on the one hand my assessment of the need to hear further evidence from him and on the other the further delay to this very long running case that would inevitably have been caused in arranging for that further hearing. I came to the conclusion that the balance came down against the proposed adjournment."
"176. Given the strength of A's wishes and feelings, on what basis could the court properly impose an outcome that he himself expressly imposes? In my judgment, my ongoing concerns about the mother would not, of themselves be sufficient."
In paragraph 179 he deals with inter-sibling contact.
"I do not for a moment doubt the very steep hill which this father would need to climb in order to persuade the Court to transfer residence from mother to him. However, 'steep climb' does not equate to 'completely without merit'."
"I confess that as I have re-read my earlier judgments, considered the authorities and read and listened to the submissions of counsel I have come to regard that hill as being much less steep than I had first thought."
"On re-reading the judgments it is apparent that the court has reached the following conclusions over the period of litigation."
"These are very concerning findings both as to harm and risk of future harm and also as to the likelihood of change if A remains in mother's care."
"This is not the place for the full argument on behalf of father for change of residence to be rehearsed. This document is simply a statement pending the filing of an application for change."
"The order that I make today will be as follows:
(1) list for hearing on 21 December..; (2) the hearing…will proceed on submissions only; (3), by 4 o'clock on 14th December, each party shall file and serve: (a) skeleton argument (b) a bundle of authorities relied upon, and (c) a draft of the final orders contended for; (4) by 4.00pm on 14th December, the solicitors shall file at court a hearing bundle containing the following document only and in this order; (a) all judgments handed down by me;
(b) all reports and letters from Dr Weir; (c) all reports from the NYAS case worker; (d) all substantive orders for residence and contact; (5) the hearing bundles previously lodged in this case should not be re-lodged but should be available…;
(6) for the avoidance of doubt, no further evidence shall be filed in advance of the hearing; and (7) costs in application."
"A's wishes and feelings must be assessed in accordance with his age and understanding. It is here that the assessment becomes more difficult. I have found that A has become alienated from his father. A has said that his father is a 'monster' and that he 'hates' him. It is clear from Dr Weir's evidence that such behaviour fits within the pattern of behaviour of children who have become alienated from their non-resident parent. In his report of 18th July 2008 Dr Weir was very clear. He said that:
'It is also important for both parents and for all professionals working with the child to recognise that the child's expressed wishes and feelings are irrational and should form no part in the Court's decision making.'
70. The law requires that the court should take account of A's wishes and feelings. It would be wrong, therefore, for me to pay no regard at all to the views which A has so clearly and consistently expressed. The Act, the UNCRC and case law all emphasise the importance of listening to and respecting the wishes of the child. As a general proposition I accept that the older the child the greater the respect that should be accorded to his or her wishes and feelings. As Butler Sloss LJ said in re S (Minors) (Access: Religious upbringing)  313 at page 321, a case involving two children aged 13 and 11,
'Nobody should dictate to children of this age, because one is dealing with their emotions, their lives and they are not packages to be moved around. They are people entitled to be treated with respect.'
I cannot and do not ignore A's expressed wishes and feelings. However, in the light of Dr Weir's evidence, it would be equally inappropriate for me to proceed on the basis that those expressed wishes and feelings should necessarily be taken at face value. They need to be assessed in the light of A's age and understanding. The impact of alienation upon the reliability of those wishes and feelings and the signs (albeit modest) that they may not in fact reflect his true feelings, are matters to be taken into account when assessing the weight to be attached to them."
"As I have stated repeatedly throughout the course of this judgment, the ultimate outcome must be one that is in A's best interests. So I ask myself would a change of residence be in A's best interests? Would it be a proportionate response to the problems and concerns I have described? Would it best promote A's right to family life? Can it properly be said that that is where the balance falls? In answering those questions I remind myself that there is no professional evidence expressly in favour of a transfer and that Mrs Kermani [that is the NYAS officer] is firmly opposed to it."
"The decision for the court is a profoundly anxious and, as I now accept, finely balanced decision. Some may regard a decision to move A as being too bold and inappropriately risky. Mrs Kermani has referred to it as 'an experiment.' Others may regard a decision not to move him as failing to grasp a nettle that has cried out to be grasped for far too long. I have taken time after Christmas and New Year to reflect on my decision. Having reflected I have come to the conclusion that, traumatic though it may be in the short-term, it is in the best interests of A's long-term welfare for him now to live with his father."
Lord Justice Wall:
"This final item in the welfare checklist brings me back once again to the need to reassess these parents. So far as the father is concerned, I have already expressed the opinion that in terms of his ability to put himself in A's shoes, his ability to show empathy, he does not appear to have moved on. I do not for one moment doubt the sincerity of the father's desire to re-establish contact between himself and A. His motives are entirely honourable. However it appears to me that the father's single-minded pursuit of that end is blind both to the risk of failure and to the potentially adverse impact on A of continuing the fight. I noted earlier the difficulty judges encounter in coming to the conclusion that the end of the road has been reached. This father has not even begun to consider the possibility that the end of the road is in view."
"Leaving aside the issue of residence, if all I were concerned with today was the question of contact, I should not have the slightest hesitation at all in saying the time will now come when the litigation should end. However, that is not the position I am in. I am faced with an application for a change of residence in circumstances where I have made significant criticisms of the mother's past behaviour in relation to contact, where I have accepted expert evidence and the severance of A's relationship with the paternal family as a potential to cause him significant emotional harm in later years and where I have expressed satisfaction that the father is able to offer good enough care for A, if A were to live with him."
Lord Justice Rimer:
Order: Applications refused