England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY
HIS HONOUR JUDGE BARCLAY
SN08P02829

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/04/2014

Lady Justice Black :

1. This appeal concerns the attempts of a father (F) to have contact with his two daughters, A and B, who are 10 and 7 years old. This is the second time that the Court of Appeal has heard an appeal brought by F on this issue. The first appeal culminated in a judgment dated 24 July 2012 which is entitled Re W (Children) and has the neutral citation number [2012] EWCA Civ 999. The respondents to the present appeal are, as they were to the previous appeal, the children's mother (M) and the children through their NYAS guardian.
2. F and M are both acting in person, as they were in front of HH Judge Barclay, from whose order of 21 June 2013 F appeals. Both F and M contributed skeleton arguments for the appeal. F attended before us and put his arguments orally as well, making his points very clearly. M did not attend. She wrote to the court explaining why that was and making some points which she may have been seeking to rely upon as part of her response to the appeal. We ensured that a copy of her letter was made available to the other parties but it was on her skeleton argument that we focussed in considering her case and not upon this last minute contribution which did not fit within the procedural rules for appeals. It was at the appeal hearing that M could have had the opportunity to develop her case in response to the appeal further, by means of oral submissions, as I hope was apparent from the message that I caused to be sent to her when she first contacted the court office to say that she was not inclined to attend. The guardian was represented before us, as before Judge Barclay, by Ms Kaur of counsel.
3. By his order, Judge Barclay dismissed F's application for a residence order and refused to grant an order for direct contact between him and the girls. He ordered that there be indirect contact by way of letters and presents from F to the children and that M should provide F with relevant information about them through their paternal aunts, to whom I shall refer as HW and C. Very realistically, F does not seek to appeal against the dismissal of his residence application, only against the judge's refusal to pursue the question of direct contact further.

The history up to the first appeal hearing

4. It is not necessary for me to set out any of the history of this matter prior to the hearing in front of the Court of Appeal on the last occasion because it can all be found in this court's judgment on that appeal. I will provide just the briefest of outlines of the facts up to that point.
5. The parents were never married but they did live together. The children were born in 2003 and 2006. Separation occurred in 2008, M leaving the family home with the girls. Contact quickly became problematic. In May 2008, F made the contact application with which we are concerned. In January 2009, an order was made for contact but it did not materialise reliably. F saw the children on 25 April 2009; this was apparently a happy contact but it was the last one that there has been. The children were joined as parties to the proceedings, with a NYAS guardian (then Mr C), in July 2009. They were maintaining that they did not want to see F and became distressed when the topic was raised.
6. A child psychologist, Dr G, reported in September 2010. What she found in relation to A is set out in the last judgment of this court at §13. In essence, she considered A's refusal to see F was part of a complex defensive strategy which she had developed as a result of the distress she had experienced. She advised that both children would require "long term desensitisation to contact" which would need to be managed by a trusted adult, for example the guardian. She recommended therapy for F and assistance for M over contact.
7. F engaged in counselling. M refused to engage with services offered or with the desensitisation plan of Dr G.
8. The case came before HH Judge Marshall for a final hearing in January 2012. The detail of that can be found in the last judgment of the Court of Appeal. The judge's final analysis was described thus in McFarlane LJ's judgment:

"30. In her final analysis as to the children's welfare the judge, rightly, stated the general principle "that contact with both parents is in the best interests of children, unless there are compelling reasons to the contrary". The judge considered that the children had a need for a positive relationship with F, and connection with their paternal family, particularly in view of an element of Indian heritage through the paternal grandmother, and the judge considered that these factors weighed heavily in the welfare balance as did the current position whereby the children were rejecting of F which was "likely to be harmful in the long term".

31. On the other side of the welfare balance M's inability to meet the children's needs in this regard, and her inability to promote and support direct contact with F, together with her likely continued adverse behaviour should any desensitisation plan be implemented, must, the judge held, also be given considerable weight. A further contraindication was the potential effect on the children if a plan to introduce contact started but then failed."

9. Judge Marshall therefore concluded that there should be no order for direct contact, ordering only indirect contact.
10. F's appeal to this court, supported by the children's guardian, succeeded. The Court of Appeal substituted its own order for that of the circuit judge. As F's arguments in this appeal draw on the decision in the first appeal, I will set out in McFarlane LJ's own terms, what was ordered:

"34. ……At the conclusion of the hearing we announced our decision which was to allow the appeal and replace the judge's order with an order directing M to make the children available for contact with F, which was to take place at the discretion of the NYAS guardian with the assistance of the children's paternal aunt, HW, as set forth in the guardian's report 12^th January 2012.

69…….The guardian submitted that the best way forward, in an admittedly difficult situation, was to implement his proposal for a gradual reintroduction using HW as an intermediary under the guardian's close guidance and supervision. Having noted that the learned judge expressly contemplated HW recommencing contact at this stage, but also noting the reservations of M, Dr G and the judge about HW's role being elevated into that of a semi-professional, we concluded that [the] guardian's proposal was the best available option on the basis that the arrangements would proceed under Mr C's control and would be subject to the continuing availability of the court for further determination and direction if required."

11. McFarlane LJ urged M to engage in therapy but said (§70) that the process:

"will now move forward without M having undertaken the work that the other parties, Dr G and the judge all consider is necessary to improve the ability of her children to achieve a positive relationship with F and to reduce the potential for these two young girls, her daughters, to be further harmed by the emotional fall out from adult relationships."

12. The case was remitted to a High Court judge for directions and ultimately found its way to Judge Barclay sitting in the High Court.

After the first appeal

13. Although the Court of Appeal judgment in the first appeal was dated 24 July 2012, the appeal had been heard on 28 May 2012 and the court's decision announced then. Since then, a great deal of work has been done in an attempt to get contact with F started. Considerable detail of this is set out in Judge Barclay's judgment. The NYAS guardian changed, Mr C being replaced with Ms A. Ms A first visited the girl's home on 18 June 2012 and the first contact between the children and HW took place on 24 June 2012 and was a success. Progress was chequered thereafter. There were some more successes, including not just happy contacts with HW but also with the other paternal aunt, C, and her child I. The children received Christmas presents from F and were pleased with them. There were failures as well. HW's attempt to work with the children with a memory box compiled by F ended unhappily in July 2012, for example. The girls would not go to see other young cousins in October 2012. An attempt to collect B from school for a meeting with F in December 2012 came to grief, ending in B hiding under the bed at home. The guardian accepted that on that occasion the circumstances had not been well managed, although the judge considered that NYAS could not dictate to the school staff or legislate for what may be said to B by a teacher or teaching assistant and could not be held responsible for what went wrong at school (§90).
14. Contact on 16 March 2013 between the children and HW and C was so positive that the final hearing which was listed to commence on 19 March 2013 was adjourned by agreement to enable more contact to be attempted. But then, in early April 2013, when the children were to see F, they refused to go despite the attempts of M and Ms Allen to persuade them. Initial reluctance and refusal was overcome on 21 April 2013 so that contact could take place with HW. But matters again went off track when a planned contact with F did not take place on 5 May 2013.

Judge Barclay's reasoning

15. Judge Barclay gave a long and thorough judgment. F had called into question the strategies that NYAS had employed and argued, as he has before us, that not all the appropriate strategies had been tried to get contact started again. The judge found that on the contrary every appropriate strategy had been tried by NYAS (§90). The judge listed what had been attempted by both Mr C and Ms A, including, for example, collecting the children from home for the contact, taking the children to contact via another relative's home, using Insight Contact Services to do preparatory work, the laudable efforts of HW, and attempting life story work.
16. The guardian's evidence to the judge was, as he recorded it at §99, "that the children's wishes and feelings could not be clearer, they do not want to see their father, and neither she nor her predecessor, Mr C, have been able to make much progress as to why not". The judge set out that the guardian said "that she pushed A quite hard for one of her reports. When she did that, A put her head in her hands and sobbed, saying, "It's all too horrible. I can't talk about it"".
17. The judge had his eyes open to M's role in what was happening. He found as a fact that she had not set out deliberately to confound the contact but equally found that "she bears some responsibility for the situation that the girls find themselves in" (§92). He referred to particular details which he clearly intended as examples of when M's contribution had not helped matters, such as what happened on 4 November 2012 when M made an unhelpful comment which led to the children not seeing HW on a particular occasion, M's bringing a good contact to an abrupt end in March 2013, and B's comments in March and April 2013 about what M had said on the subject of F. He set against these points that M had, in fact, said the right things on occasion. His conclusion was (§95):

"Overall, I have found that this mother has engaged in the desensitisation process and, probably, engaged as far as she has been able to, in the absence of therapy."

18. He recorded that M did not believe she needed therapy, had not engaged in any, and could not be forced to do so. He was quite clear that he was not basing his decision upon M's inability to support contact and commented that no parent may be allowed to dictate to the court (§108).
19. The basis for his decision is to be found in §109 of his judgment which reads:

"I have based my decision simply on the fact that the desensitisation process, recommended by Dr G and Mr C, rejected by Judge Marshall but supported by the Court of Appeal, has not managed to overcome the children's own objections to seeing their father despite all the effort put into it."

20. In reaching his decision that it was in the best interests of the children to make no order for direct contact, he had borne in mind that, as he put it (§111), "it is only in very exceptional circumstances that children should be deprived of the contribution to their lives of their absent parent" and that to do so is an order of last resort. But, he said, the desensitisation work that had been tried was put forward as a last possible strategy by Mr C and "despite lengthy attempts, perhaps far more than was initially envisaged by Mr C, and the Court of Appeal" (§112), it had proved to be beyond the abilities of the children's NYAS Guardian to bring about contact even though she had adopted all reasonable strategies and put in a tremendous effort on behalf of the children, alongside the generous efforts of F's sisters.
21. When drafting his judgment, the judge obviously hoped that M would honour the promise she had made in the witness box to continue to allow the aunts and their families into the children's lives, thus promoting the link with the paternal family and he concluded his judgment by saying so. It is said that this hope has not been fulfilled. However, I do not read the fulfilment of it as forming a necessary foundation of the decision set out and reasoned by the judge in the preceding parts of his judgment.

The grounds of appeal

22. Distilling from F's written grounds of appeal and supporting skeleton the essential arguments that he wishes to advance, I arrived at the following list which I hope captures accurately, albeit in my words, what he wishes this court to consider:

i) The judge was wrong to find that the necessary desensitisation work had been carried out. In fact, the guardian had not done what was required, her performance of her task had been flawed (for example, see the attempt to collect B at school on 7 December 2012) and HW, who has her own skills as a social worker, had not been enabled to contribute as much as she could have done

ii) The judge did not place enough weight on the history, including M's frustration of contact and/or failure to assist with it;

iii) Insufficient weight was put on the long term harm that the children would suffer by not having a relationship with F as opposed to the short term disruption in getting contact going;

iv) The judge departed from what the Court of Appeal envisaged when giving judgment on the first appeal;

v) The judge was wrong to leave the paternal family to pursue contact outside the court arena and to rely upon M to allow contact with the aunts which was an abdication of the court's responsibilities;

vi) The facts and reasons set out in the judgment did not support the judge's conclusion that there should be no direct contact

23. In oral submissions, F emphasised some of these points and developed his argument. He submitted that the judge was wrong because he did not have a full understanding of why the children feel as they do. He suggested that it may be because they were afraid of losing him again that they were unwilling to contemplate his reintroduction into their lives. His case was that their views should be challenged and that interventions such as play therapy may help. We will not get contact moving until we know where their views are coming from, he said. He explained that he had had many sleepless nights over whether harm may be done in the process of finding out, but his conclusion was that the benefits to the children of having a relationship with the paternal family outweighed the potential harm.
24. F emphasised that, in his view, the guardian was too easily deflected from the attempts to get contact started again. As he considered with us how this might now be done, I think he relied particularly upon work being done to ascertain why the children feel as they do, capitalising on the good bits of the picture such as contact with the aunts and cousins, and firm case management.

Discussion

25. McFarlane LJ set out the legal context in his judgment in the first appeal in this case. It has not been suggested that anything has since changed materially in the law and I do not propose to go over the ground again. The spotlight here is upon Judge Barclay's decision on the facts.
26. Judge Barclay proceeded on the correct basis, giving great weight to the need to secure a relationship for these children with their father and not being prepared to countenance sabotage by the other parent. However, he had to make his decision on the basis of the facts as they are, not as people wished they could have been. The proceedings had been going on since 2008 when B was 1 year old, so for most of her life and much of A's as well. There had been a great deal of intervention in their lives from a number of professionals. They have been saying that they do not wish to see their father for a considerable time.
27. When Mr C made the recommendation that the Court of Appeal accepted in 2012, he was alive to the possibility that the children may be harmed by prolonged attempts to overcome the obstacle to contact. In a passage quoted by Judge Barclay (§13), he said:

"It is my view that progress has got to be made on this case immediately or this matter should be brought to a conclusion, otherwise the children's emotional security may be compromised."

He also said (also quoted):

"This work [towards contact], I would suggest, would begin by HW developing a rapport with the children both at home and at school on a weekly basis. This should involve the introduction of the concept of their father using indirect materials such as photographs and letters, then after a period of around 8, but no less than 12 weeks [which, as Judge Barclay pointed out, should say 'no more than 12 weeks'] should include a supervised contact between F and his children if the caseworker is agreeable for such a progression."

28. Judge Barclay was therefore right to say that the attempts had perhaps gone on longer than was envisaged by Mr C and the Court of Appeal. He was also entitled, in my view, to find that all possible avenues had been explored appropriately and it can be seen from his judgment that he looked critically at what had happened before he reached that conclusion. He took into account in so doing that, on the one hand, some things had gone wrong and, on the other, there had been successes that might have given rise to optimism. He also took into account that M had contributed unhelpfully in some ways to the process. It is well to remember that at the time of the first appeal, NYAS supported F's appeal and thought that more could and should be done before abandoning hope of establishing the contact that would be in the children's best interests. But the advice the children's guardian gave to Judge Barclay was that the point had come where it was contrary to the welfare of the children to continue. The judge was entitled to rely upon that in considering what his own conclusions were. As to the judge's reliance on M to continue the association with the aunts, it is clear, as I have said, that this was a postscript to his judgment and not a necessary foundation for it. HW had been heavily involved in the work with the children over a significant period of time and yet no consistent progress had been made so there was no basis for supposing that continuing with that line would produce a breakthrough, although it is understandable that the judge expressed the hope that the connection would be maintained, because it would benefit the girls even if it did not lead to contact being established with F.
29. I should say a word specifically about F's complaint that no one has found out what is behind the girls' views. It is understandable that he should wish to know and that he may think that knowing would unlock the door to contact by enabling someone to overcome their apprehensions. However, it is not always possible to find out reliably, or at all, what the root cause of feelings is and there are very often a number of factors in play. There has already been a considerable amount of expert input into the children's lives without a firm "diagnosis" being arrived at. The judge's decision, supported by the guardian, was that the time had come when it was not in the children's interests to pursue matters further and I do not think he can be said to have been wrong.
30. I would therefore dismiss F's appeal.

Lord Justice Ryder:

31. I agree.

Sir Stanley Burnton:

32. I also agree.