ON APPEAL FROM THE DUDLEY COUNTY COURT
His Honour Judge HENDERSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE MUNBY
| In the Matter of C (A Child) AL
|- and -
(2) C (by her guardian)
Mr Charles Geekie QC (instructed by the Bar Pro Bono Unit) for the first respondent (father)
Mr Stephen Cobb QC and Mrs Val Cox (solicitor advocate) (respectively instructed by and of CMHT solicitors) for the second respondent (child)
Hearing date : 17 March 2011
Crown Copyright ©
Lord Justice Munby :
The hearing before the judge
The expert evidence
"She currently presents as emotionally fragile, with a low self esteem; poor impulse control and intense anger. [She] is also presenting with personality difficulties which might affect her ability to form lasting and meaningful relationship.
[She] has demonstrated that she has the ability to recognise and meet C's current needs, but I am concerned that during episodes of intense anger, which seems to happen frequently, it appears that [her] judgment becomes impaired and she looses her capacity to think about her daughter and her daughter's needs. This poses a risk for C."
"is highly likely to impact on her ability to consistently meet her daughter's needs; and also her ability to develop trust and maintain healthy relationship, and cope with stressful situations."
"there is no evidence of on-going serious mental illness or of any serious mental illness in her life. She does not have a history of drug or alcohol misuse. There is evidence of emotionally unstable personality traits that are manifest predominantly when she is stressed."
"There is no evidence to suggest that [she] would intend her child any harm and, indeed, the information I have seen within the Trial Bundle would support a view that she has very deep feelings of affection for her daughter. At times when she is pressed or stressed, however, she is liable to the kind of emotional and behavioural explosions that have previously been documented and this tendency will continue. There is clearly a potential for the child to suffer as a result of witnessing or being caught up in such occurrences."
In answer to a question about the mother's capacity to engage in treatment or therapy, he wrote:
"As I have not diagnosed a specific condition, there is no particular treatment that is indicated. It is entirely possible for individuals with these personality traits to learn ways of overcoming them or to adjust to some of the issues from their past that have given rise to them. For this to happen, they have to engage in psychological therapy, with the most effective base for a cognitive based stratagem. This will allow them to recognise their automatic thoughts and automatic ways of responding when faced with certain situations and to modify them. I am unable to place a likely duration on such engagement as it would rely on [her] recognising that she has difficulties and committing herself to working with them. It cannot be enforced and should not be offered to her as something in which she must engage immediately so as to provide a favourable outcome to these Proceedings. Given my assessment of her, I would not consider that [she] has very much in the way of insight into the observations that have been accepted by the Court."
"My main concern was the issue of [the father's] partner moving into the house. Having learned today that this wasn't something that happened swiftly but that obviously C had contact with [X] and her daughter over the last year for increasing periods of time and had the opportunity to know them and be comfortable with them, that does put a different complex on the situation really. So having learned that, I feel that that clearly wouldn't have been impacting on her behaviour in the way that I thought it may have done, and that would just leave me with serious concerns about the quality of the contact and I wouldn't be recommending that we continue to supervise it.
Q Because you said that the relationship between mother and … C is an extremely significant relationship and the decision to terminate any form of contact should not be taken without [extensive] consideration of all the relevant factors. Are you saying you want to … stop all contact with the mother?
A I feel that the relevant factors … have now been … satisfied with the more information today."
Asked whether she thought an expert, like a psychologist, ought to assess C's situation with her mother and her father, Mrs Chapman responded:
"I am aware that the Guardian has met with C with [the father] and obviously she's a very experienced lady in her field and she is comfortable that C is happy and settled in that environment with [him] and his partner, so I would feel that, you know, adequate investigation has been done in that area. You know, it's quite a serious decision to be getting a psychologist involved with a young child unnecessarily."
""I do believe that these contacts are having a negative upon C … I agreed to do the extra session, but now having had time to reflect on yesterday's session, I'm not sure that it's in C's best interests … The contact yesterday was pretty challenging … it was the most challenging I've seen". C was described as (amongst other things) "ignoring mum, shouting and crying" and, apparently, when attempts were made to discipline by [mother], C wanted her father. Mrs Chapman advised that she did not feel contact would be in C's best interest if it impacted in this way upon C."
"It is a matter of concern to me that following on from contact C can demonstrate such intense anger and defiant behaviour and I am not certain that there is any definitive explanation for such behaviour … I am unable to support a continuation of contact prior to any final hearing. I have concerns about the impact of contact on C at present and I am of the opinion that the ongoing issues appertaining to [the mother's] intense and deep seated hostility to [the father], coupled with on occasions, irrational and aggressive outburst and an inability to accept any responsibility for her behaviour will require further exploration at a full and final hearing before there is any consideration of the reinstatement of contact."
"has at times used the process of contact, even under a supervised setting, to continue to berate [the father] and involve herself in ongoing disputes with contact centre staff. [She] takes no responsibility for her actions, and states she has "never done C any harm" and I remain concerned that [she] is unable to draw a line under her relationship with [the father] for the sake of the emotional well-being of her daughter. Even more worrying is [her] continued view that [he] is a violent rapist, despite the findings of the Court in June 2009 that the accusations were malicious. These accusations were of a very serious nature and would have had far reaching consequences if found proven and I am concerned that should this view prevail it will continue to undermine the stability of the present family unit and C's future emotional well-being."
Her recommendation was as follows:
"the welfare of the child is paramount and I continue to be concerned in respect of [the mother's] inability to contain her emotions, particularly her dealings with C. I would concur with the view of the Psychologist and Psychiatrist that [she] should engage in psychological therapy …
I recommend that there is at present no further direct contact at this stage in order to give some release from the ongoing Court proceedings and would further invite the Court to consider a section 91(14). I would also recommend a review of matters in 18 months in order that [she] has the opportunity of benefiting from the work recommended by Dr Fear. In the meantime there should be indirect contact on a regular basis."
"I approach this application, as I have said more than once before, on the following footing. My presumption is strongly in favour of face-to-face contact between a parent and child and that presumption will only be displaced by powerful evidence.
I have considered the welfare check list of the Children Act, the Human Rights Act and the UN Convention on the Rights of the Child in my analysis of this case."
"I reject without hesitation the contention that that reduction was a deliberate, manipulated, reduction, contrived by the father who wanted to disrupt the mother's contact with their daughter. The father has clearly in my view demonstrated in all respects of his dealing with his daughter, a sensitivity to her needs which is exceptional. I have no doubt from what I've heard of and from him that he is genuinely understands the importance of C's mother in C's life, even if they don't at present meet face-to-face. He has done his best in the circumstances to keep the idea of her mother alive. A concrete illustration of his sensitivity to her needs is the careful and well thought-out way in which he reintroduced to the family his former wife and her daughter.
He [has] also clearly given great thought to preserving and nurturing C's French heritage and has maintained a relationship with the mother's family although that is clearly a delicate relationship."
There has been no challenge to that, I must return to the point in due course, but at this stage I merely emphasise that it shows just how far removed from the typical 'intractable contact' case this is.
"sure that the occasions when she's been criticised for loss of temper would demonstrate in any culture a significant loss of temper and control with consequent upset for a child, even a very young child, who heard or saw that happening."
"She has been in a very difficult position in relation to my findings of fact, which in all substance went against her. She's in the cleft stick that she has to proceed knowing that everyone else would work on the basis of my findings and has repeatedly asserted that she is prepared to work on that basis herself. I believe that she has started to move in the direction she needs to, but I have no doubt that in her heart of hearts she maintains the original assertions that she made so that in that sense is in a very difficult position. In my view in her current state she would be bound to let C know her views if she became angry and lost self-control, as she has done on a number of occasions before. It would plainly cause enormous distress and confusion for this little girl to hear such things said by her mother about her father.
She told me that it was quite clear that the father did not want her in C's life. She accepted that in the past she had been angry with the father in front of C. However she does not really acknowledge [that is my view from observing her evidence and that of the Guardian, Jane Chapman and Maria Mars] the effect that those outbursts have had on C."
"The real reason for the contact coming to an end were two-fold: first the mother's behaviour in the contact; secondly C's response to her mother.
It is important to note that much of the contact between C and her mother has been good and constructive. There have plainly been times when her mother has made C very happy to be with her. However there have been a significant number of episodes where either the mother has behaved in an angry way which would inevitably upset her daughter and/or her daughter has responded in a way that denotes some insecurity at least in relation to mother. That is a pattern, Jane Chapman told me, through contact. C was often angry towards her mother and wary and watchful in relation to her."
"I agree with the guardian's and Mrs Chapman's analysis that the difficulties at that contact were not due to the introduction of the new family but were due to difficulties in the relationship between C and her mother."
"The Guardian has been consistent in her view in recent months that face-to-face contact needs to be suspended for a significant period of time, she says about 18 months and then, she says, it should be reviewed again.
By contrast Jane Chapman appeared to be supportive of contact continuing for the mother. It became clear as I heard her evidence that her originally supportive view of the mother's application for continuing face-to-face contact was based on a misapprehension. She initially thought that the upset demonstrated most specifically on 28 April, might be explained away by a sudden change in C's home circumstances when the father's ex-wife and her daughter moved into his house. When she explored the matter further and I'm satisfied that this is the correct sequence of events, it became clear that the father had cautiously and considerately reintroduced his former wife into his household following advice and paying very close attention to the needs of C. Having herself being satisfied of that Jane Chapman now rules out that as the cause of the difficulties at the end of April. Her evidence was all the more powerful because of her evident reluctance to make a recommendation that cut across the mother's wishes."
"I'm satisfied having heard those witnesses that face-to-face contact at this stage is likely to be significantly damaging to C. She needs a break to settle
I am satisfied that before contact could be a straightforwardly comfortable and enjoyable experience for C the mother needs to carry out the work that is envisaged in particular by Maria Mars. She needs to deal with her poor impulse control and her management of stress.
I accept the guardian's evidence that it is appropriate in this case to say that there should be no face-to-face contact for a period of 18 months at least. [The father] seeks such an order for three years. I do not accept his argument."
He concluded by emphasising that there "must" be "significant" indirect contact during this period, adding:
"If after that period the mother can demonstrate that she has undertaken the therapy that is necessary and that contact consequently with C can be a comfortable experience then I expect steps to be taken to reintroduce face-to-face contact between C and her mother."
"Having read all the relevant reports, statement and previous procedural history, I do not consider there is any reasonable prospect of success. The judge's decision was in accordance with the preponderances of the expert evidence and suggestions of bias in some of the evidence are not made out. The grounds rely heavily on the quoted authorities, the gravamen of which was plainly before the judge. His failure to refer to them specifically does not mean he did not bear them in mind: see paras 4 and 5 of the judgement."
"I have mentioned to Ms Sparrow the desirability of improving her client's prospects at the earliest possible moment by not relying on the counselling she has received to date as sufficient compliance with the recommendations of the experts but, if she can, to initiate the therapy which was advised by the experts in an effort to reconcile her to her past, or at any rate to eliminate its influence upon her temper and temperament. Those observations have been taken on board, I am sure."
"The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life."
and (see Görgülü v Germany  1 FLR 894, para ) that:
"it is in a child's interest for its family ties to be maintained, as severing such ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances."
"Art 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation for the national authorities to take such measures."
"However, the national authorities' obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all concerned is always an important ingredient … the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Art 8 of the Convention. Where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them."
"The key consideration is whether those authorities have taken all necessary steps to facilitate contact as can reasonably be demanded in the special circumstances of each case."
"cannot be entitled under Article 8 … to have such measures taken as would harm the child's health and development."
The point was elaborated in Gnahoré v France (2002) 34 EHRR 38, para :
"The Court strongly emphasises that in cases of this kind the child's interest must have precedence over any other consideration. It must point out, however, that there is of course a double aspect to this interest.
On the one hand, there is no doubt that ensuring that the child grows up in a healthy environment falls within this interest and that Article 8 cannot in any way entitle a parent to have such measures taken as would harm the child's health and development.
On the other hand, it is clear that it is nevertheless in the child's interest that the links between him and his family should be maintained except where the family is shown to be especially unworthy for that purpose; to break that link amounts to cutting the child off from his roots. It follows that the child's interest necessitates that only wholly exceptional circumstances may lead to a breaking of the family bond and that everything should be done to maintain personal relations and, where possible and when the occasion arises, to "reconstitute" the family."
Precisely the same point was made by Sedley LJ in In re F (Adult: Court's Jurisdiction)  Fam 38, 57.
"The … authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed."
"the ultimum remedium of interference is justified if (a) it is objectively in the best interests of the child, (b) it balances the rights of the parents (and other close relatives) against the best interests of the child and (c) it demonstrably strives to re-establish the parent-child relationship."
I agree with Mr Scott-Manderson that this is a convenient and accurate summary of the Strasbourg jurisprudence.
"contact is almost always in the interests of a child and should not be prevented unless the order would hinder the welfare of the child … contact should not be prevented unless there are cogent reasons for doing so."
He referred (at 733) to the observation of Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions)  2 FLR 124, at 129, that:
"The courts should not at all readily accept that the child's welfare will be injured by direct contact. Judging that question the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems."
"'It is the general proposition, underpinned undoubtedly by the Children Act 1989 … that it is in the interests of a child to retain contact with the parent with whom the child does not reside. The courts generally set their face against depriving a child of such contact".
"Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident [parents] in the lives of their children, and only make orders terminating contact when there is no alternative."
She continued (para ) that:
"It is … most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt."
She warned (para ) against coming to a "premature" decision "to abandon all hope of achieving some contact."
The grounds of appeal
i) Ground 1: The judge failed to take into account the mother's rights under Article 8 and the "normal assumption" that a child would suffer if contact with the mother were denied. Reference in this connection was made to the decision of the Strasbourg court in C v Finland (2008) 46 EHRR 24,  2 FLR 597, and to my own judgment in Re D (Intractable Contact Dispute: Publicity)  EWHC 727 (Fam),  1 FLR 1226.
ii) Ground 2: The judge misdirected himself in not differentiating between his approach to residence and his approach to contact, failing to apply a stricter scrutiny test in relation to restrictions on parental contact. Reference was again made to C v Finland and to Re D.
iii) Ground 3: The judge, by suspending contact for 18 months, failed to heed his positive duty to promote contact between the mother and C and in reality abandoned any possibility of a relationship between the mother and C for the foreseeable future, contrary to what this court had said in Re S (Contact: Promoting Relationship with Absent Parent)  EWCA Civ 18,  1 FLR 1279.
iv) Ground 4: The judge failed to strike a proper balance between the respective interests and to look at the medium to long term possibilities. Reference was again made to Re S.
v) Ground 5: The judge, by suspending contact and making the section 91(14) order, failed to apply the stricter scrutiny test. Reference was made to the decisions of the Strasbourg court in Ignaccolo-Zenide v Romania (2001) 31 EHRR 7, Hansen v Turkey  1 FLR 142, Görgülü v Germany  1 FLR 894 and Zawadka v Poland  2 FLR 897.
vi) Ground 6: There were no exceptional circumstances to justify the judge's decision
vii) Ground 7: The decision process as a whole did not provide fairness, contrary to Articles 6 and 8, in that (a) the burden of proof was put on the mother to demonstrate that she would not cause problems for C through contact, (b) an application for a child psychologist to provide an independent view was refused, (c) an adjournment to call Dr Fear was refused, and (d) the guardian took a partisan view and showed a lack of independence.
The parties' contentions
"the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts."
He went on:
"The exigencies of daily courtroom life are such that reasons for judgment will always be capable of having been better expressed … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account … An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
Lord Justice Hooper :
Lord Justice Pill :