ON APPEAL FROM SHEFFIELD DISTRICT REGISTRY
HHJ Goldsack QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE BRIGGS
|Re: A (A child)|
Miss Pennie Stanistreet (instructed by Taylor and Emmet Solicitors LLP) for the First Respondent
Ms Jessica Pemberton (instructed by NYAS) for the Second Respondent
Hearing date : 7 June 2013
Crown Copyright ©
Lord Justice McFarlane :
"It was in 1988, as a Recorder, that I first started hearing private family law cases. I have continued to hear them over the intervening twenty four years, including four years as Designated Family Judge at the end of the last century. I do not recall any case (even Public Law cases involving several children) which has taken so long or has left me with such a feeling of failure on the part of the Family Justice System. Neither the parents nor the child have been well served…. All I can say, with the benefit of hindsight, is that some of the turns which this case has taken, or not taken, appear surprising and I have no difficulty in understanding why father has expressed criticism both of professionals appointed to assist the court and judges for not enforcing orders."
The forensic history
"3 . Father is now 60; mother now 48. They were in a relationship for about ten years before M was born. Although never married they lived together before the birth and for a few months after the birth. An important background fact has been mother's health problems, both mental and physical, which are of long standing. She had at least one mental breakdown before the birth of M. She has been variously diagnosed as having an emotionally unstable personality disorder, displaying paranoid personality traits and periodically suffers from depression. These have not been helped by occasions when she has abused alcohol and/or illicit drugs. She also suffers from Crohn's disease and was unable to attend the final hearing because she had only recently been discharged from hospital after admission for complications from that condition.
4. It is father's case that, since very shortly after M was born, mother (aided and abetted by her parents – with whom she has had an on-off relationship over the years and who, father believes, have never liked him) has tried to prevent him from having a worthwhile relationship with M. Mother has always asserted that she wants M to have a "normal" relationship with her father. That there have hardly ever been periods when that occurred she has increasingly put down to M not wanting to go for contact (particularly staying) and, more latterly, refusing to go for contact.
5. Father has only had any contact with M as a result of bringing applications before the court and referring the matter back to court when mother either refuses to "move contact on" or does not produce M for contact. Early Cafcass reports are revealing. As early as April 2002 mother was resistant to contact moving on to overnight stays although there has never been any doubt about father's ability to cope with the care of M: Cafcass recommended it. Almost immediately mother tried to undermine it by saying M was not happy with the food father was providing and M did not want to go. She stopped M going. Cafcass recommended suspending staying contact. It was re-instated later and in March 2003 the Cafcass writer observed: "the court may feel enough resources have been devolved to this case and it is incumbent on mother and father to make any order work".
6. Later that year father saw more of M because mother was in a new relationship and wished time with her boyfriend. M was also being left with her maternal grandparents who were concerned that mother was drinking heavily, behaving badly and not providing proper care. The acrimonious situation between maternal grandparents and father and, to a lesser extent, mother was noted. A section 37 report was recommended and ordered. The recommendation was for M to stay with mother and parents to sort contact out between themselves (subsequently defined by the court). Within months Cafcass were preparing another report because mother was not providing the contact ordered. Father was considering an application to change residence but decided against. He wanted alternate weekends. That is what was recommended because "there was no good reason why a child of nearly five who has a demonstrably good relationship with the non-resident parent should not spend a full weekend with that parent". A family assistance order was made. Yet further difficulties resulted in the case being back before court in March 2006 when no staying contact was ordered pending yet another report from Cafcass.
7. Within days of that order M made allegations that father had sexually abused her. The investigation into those matters was not handled well and breached all guidelines. The Judge did not feel the professionals involved had approached the matter with an open mind. There was a five day hearing which resulted in the Judge concluding that the alleged abuse had not occurred. She described M as "telling a story rather than reliving it". Several matters stated in her judgment are informative and have come up time and again in the subsequent history of this case
- M is a very bright girl and mature beyond her chronological age: she can be manipulative
- In dealings with Cafcass and Social Services mother cannot deny her negative feelings toward father and M is very well aware of this
- Mother had blown a different minor issue out of all proportion: "I believe M played to her mother's sympathy and she got it in bucket loads!"
- Despite the allegations M had shown no reluctance to go for contact on other occasions
- "Father does not come out of this all sweetness and light". Father had accused mother of priming M. The Judge did not go so far as to find that proved but did find that mother was all too ready to find bad in father which fostered the negatives she already had.
- Care would need to be taken to avoid M becoming an "emotional wreck".
8. A Guardian was appointed for M. She observed contact with father on two occasions. It went well. M showed no reluctance and said afterwards that she had enjoyed it. Unsupervised contact was recommended. Subsequently, in February 2007, overnight contact was ordered. By then the case was being dealt with by the now Designated Family Judge (DFJ) who has since dealt with virtually every hearing until September 2011.
9. There was a dramatic turn of events a few days later. Mother's mental health was deteriorating. M was with her maternal grandparents. The day before M was due to have the first staying contact with father mother visited him. When she left father found a knife concealed down the settee and his back door key was missing. Mother brought M the following day. There was an ugly scene and the police were called. They found the key and another knife in the mother's handbag. She was charged with possessing a bladed article and harassment of father. She was admitted to a mental hospital. She was subsequently made the subject of a community order with a restraining order not to visit father's house (subsequently varied). Father was granted a residence order in respect of M on 26th February and she lived with him happily until November 2007.
10. Once mother was discharged from hospital and her health had improved M started having contact with her. She told her Guardian that although she loved her father and wanted to spend a lot of time with him she would like to return to live with mother. Meanwhile Dr Hall, Chartered Clinical Psychologist, had been instructed to prepare a report on both parents and M. In her first report (April 2007) she did not consider mother was capable of looking after M properly. By the time of her addendum (September 2007) she did and her recommendation was that M return to live with mother. The Guardian also recommended M return to live with her mother, largely based on M's strong wish to do so and the Guardian's view that M was operating at a level above her chronological age and was able to assess her own best interests.
11. In evidence I asked father whether he had opposed the move back to mother. He told me that had been his intention. But he was advised by his lawyers that, in the light of the recommendation from the Guardian, he was bound to fail. Reluctantly, he had accepted that advice so there was no contested hearing. He told me (and it is contained in her report) that he was assured by the Guardian that mother was now promising to co-operate with contact and it was on that basis that the Guardian made her recommendation.
12. Mother did not regularly make M available for contact as directed and further hearings were required in 2008 and early 2009. Contact was ordered and on some occasions a penal notice attached. There was a very detailed order with a penal notice attached on 12th March 2009. A week later mother applied to suspend the order. M had returned from contact with a bruise to her leg. She alleged father had caused it by pinching her. Father was to accept that was correct but only because M at the time was hurting him and he did it to make her stop. Incredibly, not only was father charged with common assault but the matter went all the way to a trial before a District Judge who decided that no criminal offence had been committed. That was in November 2009. In the meantime the DFJ had ordered that contact was to be supervised by maternal uncle.
13. M's position on contact was hardening. She was telling her Guardian that she was frightened of father. She was refusing to attend contact unless it was supervised by a person of her choice. The Guardian took the view that was appropriate. A full hearing was directed and Dr Hall asked to prepare a further report. In February 2010 she advised that M should not be forced to go to contact in any way than the way she wants it. That recommendation was adopted by the Guardian and so ordered by the court. Mother agreed to go for mediation at father's expense. The DFJ made a section 91(14) order to last until October 2012.
14. In fact the case was back before the DFJ before long. An order was made for father to have further supervised contact with Core Care. Arrangements were being made for a "final" hearing and it was agreed that Dr Kirk Weir, consultant psychiatrist, be instructed because of his expertise in long-running acrimonious cases. His report was prepared in late July 2011. On 18th August yet another order was made for father to have unsupervised contact. M did not attend and father brought the case back to court on 1st September. On that occasion M attended court. After speaking to M, the DFJ ordered she go off for the day for contact with father, accompanied by someone she knew well.
15. On 2nd September mother brought the matter back to court, complaining about what had happened the day before and saying that M had spent the night crying and distressed about the trauma of what happened. In fact, based on other evidence I later saw and accept, M had had a thoroughly enjoyable day with father on the 1st but then burst into tears when she arrived home to her mother and maternal grandmother and said it had been awful. The DFJ set up a hearing for 30th September which was later changed to 17th October for the experts to attend."
The hearings before HHJ Goldsack
"The first contact – on M's birthday – went well (it was held at her house with mother leaving her and father alone). Contact was due to start the next day at 3.00 p.m. By a dreadful mistake father got the time wrong and turned up to collect M at 4.30 p.m. Mother had by then left the house with M without trying to reach father by phone. When he realised his mistake and phoned mother she refused to change her arrangements. Essentially she accused father of being in breach of the order and letting M down. It was used as "justification" for M not attending the forthcoming weekend contact either."
4th October 2011
26th October 2011
3rd November 2011
2nd December 2011
9th December 2011
15th February 2012
13th June 2012
9th July 2012
19th September 2012
21st September 2012
4th and 5th October 2012 (with judgment being handed down on 9th October 2012)
a) M's guardian, who had only been appointed in August 2011, developed health problems and could not attend the adjourned hearing fixed for 1 November 2011. A fresh, very experienced guardian was appointed in her place and the hearing was adjourned;
b) at a subsequent hearing the new guardian considered that there was clear evidence that M may have suffered significant psychological harm and she recommended drawing the local authority into the case via a direction under CA 1989, s 37. The judge acceded to that advice and the case was therefore further adjourned to February 2012;
c) shortly before the February 2012 hearing the new guardian was taken ill and the matter had to be rescheduled to a June hearing in the hope that she would be sufficiently fit to take part. By June it was sadly plain that the guardian was not able to return to work. Those acting for the father persuaded the judge to appoint the National Youth Advocacy Service ('NYAS') as M's guardian, which made further delay inevitable;
d) the mother then became ill as a result of her Crohn's disease and had several weeks in hospital. The maternal grandmother moved into the mother's home to look after M. By the time of the final hearing in October 2012, the mother, whilst out of hospital, was not fit to attend court. The judge therefore only heard evidence from the father and the new NYAS guardian (in addition to the two experts some 12 months earlier).
"the position remains that M does not refuse to have contact with her father. She is convinced that matters will be sorted out informally and that contact will continue on an unstructured basis if left to the family to sort out. She is adamant that the court's involvement is counter productive. She wants the process to stop.
In summary M has reaffirmed her wish to live with her mother, develop her social relationships and have continuing contact with her father on an ad hoc basis."
The expert and professional evidence
"my observations of contact are identical to those made by others over the years. Her father loves M and his feelings are reciprocated. I have no concerns about the quality of his parenting."
In relation to the mother's role Dr Weir stated:
"I did not think that the mother could be trusted to support M's contact with her father or grandparents. The mother appears to want an unhealthy exclusive relationship with M. The mother hides her opposition to contact behind her daughter's stated "wishes and feelings". She is an intelligent person and…may well know exactly what she is doing. If that is so she is deliberately causing emotional harm to her daughter."
"it is highly probable that M's views on contact and the proceedings are influenced directly by her mother as well as by the internal psychological difficulties caused by her conflicts of loyalty. That is why her views change and why it is invidious to suggest to M that they will play much part in the court's decision making."
"The passage of time, the concurrent increase in M's age and the lack of contact are relevant as all make it less likely that a resumption of contact can be achieved without M's co-operation. A forced transfer of residence cannot be recommended for a reasonably mature 13 year old unless an agency such as SSD/CAFCASS/NYAS are prepared to be actively involved in supporting the transfer and the aftermath. The court will be in a position to know if this is likely."
"It is very sad that the relationship between (father) and his daughter M has reached this stage, but…when everything possible has been attempted to try to make the relationship between the child and non-resident parent work, and has failed, and it is clear that the child will not benefit from the attempt to continue it, then it is time to end the proceedings. It is difficult without being critical of very minor issues, to determine what else or what more (father) could have done or whether he should have done some things in a different way. Even if M had been willing to live with her father, there is quite a "gap" between the knowledge he has demonstrated of young people at M's age and development, and the expectations she has, and there would no doubt have been a lot of challenging issues in their relationships. I do understand (father's) argument that until he is given an opportunity to try parenting M on a full-time basis, no one, including him, knows what he might be capable of. Sadly, I am unable to recommend that he be given that opportunity."
HHJ Goldsack's conclusions
"26. This is a case where one could raise a number of "what ifs". What if the court had taken a stronger line with mother in the early stages and transferred residence to father when she blatantly ignored court orders? What if M had been allowed to stay with father after he successfully looked after her for eight months when mother had a further mental breakdown? What if the court had not endorsed the recommendations that contact should proceed at M's pace and on her terms? What if, at any stage, there had been a male professional assigned to the case – would there have been a different approach? And what if there had not had to be significant delays after the hearing in October 2011 because of the illness of successive Guardians?
27. But I agree with the NYAS case worker that "we are where we are" and this case must be determined on the now available evidence. That is, that there is no way at present to enable father to have meaningful contact with M. She simply will not attend. I have no doubt that, despite her assertions to the contrary, mother has always been implacably opposed to contact – and that includes the father's extended family, with some of whom M has at times enjoyed good contact. Whether that is because of her mental heath problems (as father is still charitably inclined to accept) is probably no longer relevant. It is a fact, which M has taken on board. The evidence is clear that whenever M has contact with father it is positive and that M does love her father. I do not believe she is in fact frightened of father. But she is torn by loyalty to her mother who does have serious medical problems.
28. I have enormous sympathy for father. Despite all that has, quite unjustifiably, been thrown at him he has remained loyal to his daughter. With a mother and maternal grand-parents determined to prevent him having a positive relationship with M he is in an impossible position.
29. But, despite all that has happened, M is doing well. She is described as bright and doing well at school. She has a good group of friends, her attendance is good and she is one of the most advanced in her year group. Although there must remain concern that she has been psychologically damaged by all that has happened in her family life that is not yet apparent by any disturbed behaviour. Although for many years her stated views have, in my judgment, been substantially influenced by mother I accept that what she is currently saying are her own views. Given her present age it is now time to give those views considerable weight. She is entitled to a life which does not involve endless meetings with professionals and the uncertainty of what the next court order will say – and which she has no present intention of complying with if it not to her liking.
30. Accordingly my judgment is that a line needs to be drawn under these proceedings. Father is still putting forward other possible ways of achieving contact but no-one else believes they will work and nor do I. The court has tried all possible options and must now accept failure. M is increasingly blaming father for the continuance of these proceedings and to continue them further will reduce what chance there is that, free of pressure, M will in time realise that father does have a role to play in her life and she will seek him out.
31. Over the last few months much case law has been referred to in position statements, skeleton arguments and submissions. I have considered them all but, ultimately, each case is fact specific. In that small proportion of cases where nothing seems to work a court must be prepared to say that proceedings have become part of the problem and are likely to cause damage (or further damage) to the child concerned. This is such a case."
The legal context
The child's 'wishes and feelings'
"As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants. Especially in Hague Convention cases, the relevance of the child's views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parent's views."
Intractable contact disputes
"… the father may feel that he is suffering injustice. I am afraid to say that I think he is suffering an injustice, but this is yet another example where the welfare of the child requires the court to inflict injustice upon a parent with whom the child is not resident."
The Supreme Court decision in Re B
"There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii)."
Has there been systemic failure sufficient to violate ECHR Article 8?
'… orders of the court are made to be obeyed. They are not made for any other reason … it is perhaps appropriate that the message goes out in loud and in clear terms that there does come a limit to the tolerance of the court to see its orders flouted by mothers even if they have to care for their young children. If she goes to prison it is her fault, not the fault of the judge who did no more than his duty to the child which is imposed on him by Parliament.'
In Re S, Neuberger LJ, as he then was, stated:
'It seems to me that this [committal order] was an order which was justified both in terms of enforcing respect for the orders of the court, and, therefore, for the rule of law in society, and also, as a last resort, to coerce the mother into complying with court orders.'
- judicial continuity;
- judicial case management including effective timetabling;
- a judicially set strategy for the case; and
- consistency of judicial approach.
For my part, I would in turn expressly endorse Munby LJ's description of the approach to be taken in these most difficult of cases and I would commend a re-reading of his judgment to any judge facing a contact case which is, or may be becoming, intractable. In doing so I would stress the latter two elements in the judicial armoury that I have listed. The need for the single judge who has charge of the case to establish a 'set strategy for the case' and to stick consistently to that strategy, so that all parties and the judge know what is happening and what the court plainly expects will happen, cannot be understated. If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then, as part of a consistent strategy, the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in CA 1989, ss 11J-11N or by contempt proceedings. To do otherwise would be to abandon the strategy for the case with the risk that a situation similar to that which has occurred in the present case may develop; to do otherwise is also inconsistent with the rule of law.
a) the case was ready for final determination in October 2011, yet was not concluded until October 2012;
b) prior to the October 2011 hearing the court order had provided for the father to have unsupervised contact. In the event that did not take place but, following a meeting between HHJ Carr and M at court, M had gone for a day of unsupervised contact with her father which was later held to have been thoroughly enjoyable;
c) following hearing the oral evidence of the experts on 17th October, HHJ Goldsack was sufficiently in favour of building up the relationship between father and daughter to order unsupervised staying contact;
d) that contact never materialised, but was replaced with an order for shorter periods of contact which was supported by a full explanation to the mother of the consequences should she disobey the order. The first such contact did not take place as a result of the father's mistake over timing. Thereafter the court backed off from expressing the requirement that subsequent orders should be obeyed by, in the judge's erroneous phrase, not attaching a penal notice;
e) thereafter a replacement guardian was appointed and, on her recommendation, the judge acceded to a further adjournment to facilitate the s 37 direction;
f) when, shortly before the resumed hearing planned for February 2012, the 'new' guardian became indisposed, the judge allowed an adjournment of four months and then, in June, was forced to abandon that appointment and replace CAFCASS with NYAS;
g) the final stage of the hearing was concluded without the presence of the mother, without the NYAS officer ever having met the mother and without the judge having heard any evidence from the mother at any stage in the 12 month part-heard hearing;
h) By November 2011 the judge had moved from a position, held only a month earlier, of favouring unsupervised staying contact and making orders for daytime contact backed up by explicit warnings as to the consequences of breach, to one of accepting that there should be 'some flexibility for M to make choices' and, for that reason, not attaching a penal notice. It would seem that from that time onwards the judge did not regard his orders for contact as being ones that would be directly enforced against the mother – and she must have known that;
i) The judge accepted, and we have no reason to doubt, the genuine nature of the mother's physical condition which prevented her from attending court in October 2012, but the consequence of this was that the mother, who will have understood that the judge no longer contemplated that his orders for contact would be backed up by enforcement proceedings, and whom the judge went on to conclude had always been implacably opposed to contact, was no longer even actively engaged in the court process;
j) M's day to day care was apparently being undertaken by the maternal grandmother, yet she was not seemingly drawn into the court process in any way;
k) by the time of the final hearing the judge had moved from a position of being favourably disposed to unsupervised staying contact to one where he regarded a 'no contact' order as the only tenable outcome, yet, other than the accrual of more evidence as to the consistency of M's stated wishes and feelings, there had been no change following October 2011 in the core evidence relating to either of the parents or to M.
HHJ Goldsack's welfare decision
a) M has consistently expressed her view to a number of professionals and her view was that 'she does not currently want contact with father (because she is frightened of him and/or does not trust him) and wants these proceedings brought to a conclusion';
b) 'We are where we are' and the case must now be determined on the available evidence;
c) there is no way at present to enable father to have meaningful contact with M; she simply will not attend;
d) Mother has always been implacably opposed to contact and that is a fact which M has taken on board;
e) contact between father and M when it occurs is positive. M loves her father and I do not believe she is in fact frightened of him, but she is torn by her loyalty to her mother;
f) Although for many years M's stated views have been substantially influenced by mother, I accept that what she is currently saying are her own views. Given her age it is now time to give those views considerable weight;
g) M is entitled to a life which does not involve endless meetings and uncertainty as to future court orders;
h) No other strategies will work and M is increasingly blaming her father for the continuance of these proceedings.
i) the court, and the various agencies, have failed to take into account that this is a case of implacable hostility and that it is in that context that M has come to express the views that she currently expresses;
ii) in particular, the court has failed to follow the advice of the only acknowledge expert in the case in relation to parental alienation and intractable hostility, Dr Weir;
iii) the court has ignored the evidence of the mother's personality disorder, her physical and mental ill-health and her alcohol dependency – both as a contributory factor to M's views but also because of the possibility that in the future M will require the support of her father should the mother, once again, become incapable of caring for her;
iv) the court has failed to consider why M should have become so hostile towards her father, when following the last contact in February 2012 she had expressed a wish to continue to see him for contact;
v) the court has failed to take account of the fact that on 1st September 2011 M attended court saying that she did not wish to see her father, yet left with him for a day of unsupervised contact which, it has been found, she thoroughly enjoyed.
a) he did not accept the validity of M's stated reasons for her expressed wishes and feelings;
b) he found that the mother had always been implacably hostile to contact and that M had taken this on board; yet
c) he regarded M as now expressing views which were her own.
The judge's failure to explain how these three apparently incompatible findings were to be reconciled is significant and plainly goes to the root of the judicial exercise of discretion, based as it was on M's views.
Lord Justice Briggs
Lord Justice Aikens