England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
His Honour Judge GLEN BRASSE

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 September 2015

Sir James Munby, President of the Family Division :

1. This is an appeal, pursuant to permission given by Ryder LJ on 9 October 2014, from a judgment and order of His Honour Judge Glen Brasse given and made on 8 August 2014. The appellant father and respondent mother both appeared before us in person, though the father was able to rely upon a skeleton argument in support of the appeal prepared by counsel who had previously been acting for him. We had the advantage of submissions on behalf of the guardian from Ms Sally Bradley.
2. Judge Brasse was sitting in the Central Family Court dealing with private law proceedings in relation to Q, a little boy born in September 2007. His parents' relationship ended in February 2008. Since then Q has lived with his mother. The litigation began in May 2008. It has been going on ever since, driven by the father's understandable desire to have a meaningful relationship with his son and prolonged by the seemingly insuperable difficulties in achieving that with more than fitful frequency.
3. Happily, there has been a high degree of judicial continuity throughout. Judge Brasse first became involved in September 2008. Apart from two hearings before His Honour Judge John Mitchell in March and June 2009, and a hearing before His Honour Judge Horowitz QC in July 2010, every hearing has been before Judge Brasse. The tempo of the litigation is demonstrated by the fact that we have transcripts of no fewer than eight previous judgments of Judge Brasse, delivered on 19 September 2008, 10 July 2009, 11 January 2010, 1 April 2011, 16 February 2012, 16 November 2012, 12 September 2013 and 9 January 2014, and running in all to some 160 pages. I should add that the attempt by the mother to appeal against an order made by Judge Brasse on 15 November 2012 was rejected by the Court of Appeal (Black LJ) on 15 March 2013.
4. There is no need for me to go through the complex history of this litigation (the chronology runs to some 30 pages) in any detail. It has been summarised, dispassionately and most carefully, by Ms Bradley in her skeleton argument, which has to be read in conjunction with a most illuminating 'chronology of efforts made to assist contact' which Ms Bradley also prepared for our assistance. These documents have been invaluable in facilitating our understanding of how matters have reached the desperate situation in which Q and his parents now find themselves. I am very grateful to Ms Bradley, who I trust will forgive me if I take them very largely as read.
5. The present impasse is not for want of enormous efforts by Judge Brasse, who down the years has invited appropriate assistance from a variety of professionals. CAFCASS became involved: KD provided a section 7 report and was subsequently appointed Q's guardian. In 2011, Dr CL, a child and adolescent psychiatrist, was instructed. Her report recommended therapy for Q and counselling for the parents. Judge Brasse directed that Q be referred to the Violet Melchett Centre (CAMHS). Q was seen by a play therapist. The parents commenced parenting sessions, but by November 2012 it had become clear that they were unable to agree the identity of their therapist. The Violet Melchett Centre, having assessed Q, reported that therapy for him was not appropriate whilst proceedings were ongoing. Judge Brasse appointed a vey experienced independent social worker, LB, to assist in facilitating contact. In March 2013, Judge Brasse directed the parents to attend therapeutic mediation with CC. Only one joint session took place. There were further reports from KD and LB. And so the matter came before Judge Brasse on 8 August 2014.
6. The stance of the guardian, KD, immediately before that hearing was set out in the position statement prepared by her solicitors:

"The Guardian is clear that this child is emotionally traumatised by the concept of contact and these proceedings have been going on for a considerable period of time. It is of concern that the recommendations of Dr CL have not been implemented by both parents, and it is Q in between the two that has suffered. The division between the parents is insurmountable and whichever parent Q lives with, the Guardian is not confident that anything will change.

… In the Guardian's view there should be a final hearing on this matter. Q needs conclusion of the proceedings and needs to start therapy at the Violet Melchett clinic which can only start when proceedings conclude. In the Guardian's view a welfare based hearing should take place on whether or not contact can continue and if so how and in what format. The Guardian would wish to do a report for that hearing. The witnesses need only be the parents and the Guardian."

7. In his judgment, Judge Brasse set out that:

"the conclusion that the court has come to on the basis of having heard and read a huge amount of evidence over those years is this:

the father is well disposed towards his son and has never done him any deliberate harm;

the allegations against the father are manifestly false;

the recent allegations made by the child against the father are so incoherent that it is difficult to formulate any single consistent charge against him;

the evidence in my judgment is overwhelmingly in support of the view that this child has been influenced by the mother's hostility towards the father. She has demonstrated by the presentation of her case over and over again that she is only willing to hear from this child what supports her view, and ignores those parts of his presentation which does not."

8. He set out events since his previous judgment on 9 January 2014. He identified the four options before him:

i) To order the mother again to allow contact: He rejected this, accepting KD's advice that it would, for reasons he identified, be harmful to Q.

ii) To order a section 37 report and engage the help of the local authority: He agreed with KD's view that, for reasons he set out, this would be highly likely to cause Q harm. Moreover, as he commented, to go down this route would be both undesirable and unnecessary; undesirable because it would prolong the proceedings and unnecessary because he could make an order today – a specific issue order – which would achieve exactly the same thing.

iii) To bring the proceedings to an end without further order: He described this as the counsel of despair.

iv) To enlist the assistance of the Violet Melchett Centre.

9. In relation to option (iii), Judge Brasse said this:

"The third possibility is the counsel of despair – that is that notwithstanding the harm which I have found as a fact to have been caused to this child by the mother's influence, and the harm that he would suffer from not being able to develop a relationship with his father, which I have also found, the course of least harm would be to bring these proceedings to an end without further order. That would leave Q living with his mother, who provides well for him materially and educationally and, apart from supporting the relationship with his father, provides a loving atmosphere for the child too.

[Counsel] submits on behalf of the father that that would leave Q with an entirely false view of his father as some kind of monster; that would do huge harm to Q in the long term, because Q as he grew older would reflect that part of his biological inheritance comes from a person who is that horrible. He would have no sound or realistic understanding of his identity because he would be cut off from his father and his father's family. With all that I agree. But, once again, at this juncture to force a child against his wishes into contact sessions would cause just an aggravation of the harm which was manifest in the reports the court received."

10. In relation to option (iv), Judge Brasse said:

"The fourth possibility which was foreshadowed in the guardian's position statement but developed in the course of argument was that as the child has been seriously emotionally harmed (I would attach the expression, "significantly emotionally harmed"), as a result of the care he has received – that not being what it would be reasonable to expect a parent to give him – some affirmative action should be taken to address the harm and, if possible, reverse it. As, in the guardian's view, removal of the child from the mother's care is not a reasonable option, if this child's welfare is to be protected and safeguarded, then at the very least the court should ensure he receives psychological intervention.

And there, it was submitted, appeared a glimmer of hope. The Violet Melchett Centre is a well-established NHS resource staffed by very experienced people who have, over the decades, helped children who have been harmed as a result of parental conflict. This child, I have found as a fact, has been significantly harmed as a result of parental conflict. The Centre can offer help of an effective kind if the parents themselves are willing to participate. Here, [the mother] is. She has said so in terms to this court. Further, she has agreed that she would not place any impediment in the way of [the father] to participate in that therapeutic process if he wished; and, thirdly, it would be possible to ensure that the therapists were provided only with, as I put it, "neutral" information …

The object of the sessions at the Violet Melchett Centre would be, as I have said, to repair the emotional harm; possibly if the therapist thought this was helpful, to promote communication between the parents of a helpful kind; and possibly to revive the seriously damaged relationship between the child and his father.

Violet Melchett have informed the guardian they would not start work until these proceedings have come to an end, because the continuation of the proceedings cause an additional stress for the child which is out of their control."

11. The judge's overall conclusion was summarised in these two paragraphs:

"I find the child, as I have explained, has suffered significant emotional harm which continues to go unaddressed while he is living in an atmosphere which is so hostile to his father, and I find that there is clearly a case that this child needs therapeutic intervention as he is unlikely to recover from the emotional harm unless such steps are taken. I am persuaded that he needs a cessation of these proceedings for that therapeutic intervention to be effective.

… So my conclusion is that I shall make a specific issue order, and I shall order that both parents co-operate in the referral of this child to the Violet Melchett Centre for an assessment of his emotional and psychological wellbeing, and for such treatment as the staff at the Violet Melchett Centre recommend."

12. In the upshot the order Judge Brasse made on 8 August 2014 included a specific issue order that "both parents shall cooperate in the referral to the Violet Melchett Centre for an assessment of the psychiatric and emotional wellbeing of Q together with such treatment as required"; a direction that there be no further order in respect of child arrangements; a direction that "in the event that this matter returns to Court a Guardian shall be appointed for Q" (coupled with a request to appoint KD "given her long association with the case and her knowledge of Q"); and a direction that the matter be reserved to him if available.
13. Judge Brasse refused the father permission to appeal. In the course of explaining why, he said this:

"The mere fact that people ask for a hearing is not a good enough reason. Some positive benefit needs to be obtained by having a further hearing, and in this case the prolongation of these proceedings will actually do more harm than good to this child. He is fully aware of the proceedings, he effectively has asked for them to be brought to an end."

14. The father renewed his application to this court. Permission to appeal was granted by Ryder LJ on 9 October 2014. I should set out his reasons in full:

"The application as made characterises the judge's decision as a departure from his own strategy for contact in a case where the mother has made false allegations which have deprived a child of contact that he needs and enjoys. If that is right, then bringing the proceedings to an end without an order for contact or consideration of changing residence to the father (ie a child arrangements order that has the same effect) would be an abrogation of the court's function in a private law children's case. It is for that reason that I give permission.

That said, I do not detect that the judge intended to bring the proceedings to an end. He was persuaded of that by counsel after he had given judgment. His initial reaction was that he had intended to suspend his strategy to give therapy a try – an entirely respectable proposition that would not be appealable. If however the therapy is not going to occur for an agreed period in an agreed way (for example 6 sessions over say 3 months) then this needs to be heard asap.

Before this matter is listed for a full hearing the parties are to meet in an attempt to mediate a therapeutic solution on the basis that the judge would have the matter back at the end of an agreed therapy period. If there is no agreement, the very nature of therapy indicates that another solution will need to be found and the appeal court will need to know what each party's position is."

15. On 29 April 2015, the mother filed an application seeking permission to adduce what she called fresh and new further evidence. Her application was supported by an "overview" dated 26 April 2015 which was 20 pages long. It came before Ryder LJ 20 May 2015. He adjourned the application to be considered at the hearing of the appeal, observing that she had not disclosed the materials upon which she sought to rely. By the time the matter came on for hearing before us on 11 June 2015, the mother had lodged four lever arch files of documents, a further "representation" dated 15 May 2015 which was 35 pages long, and a "statement" dated 9 June 2015 which was 29 pages long. In the event (see below) we were able to deal with the appeal without calling upon the mother. There is, therefore, no need for me even to attempt to describe, let alone summarise, this vast mass of material deployed by her. Nor was there any need for us to consider the merits of her application, which we will accordingly dismiss.
16. On 1 June 2015 the guardian filed an application seeking leave to submit fresh evidence in the form of letters from Dr JP of the Violet Melchett Clinic dated 10 February 2015 and 17 March 2015. We granted that application. In the first letter Dr JP expressed the view, having assessed him, that "Q is directly and indirectly adversely affected by the ongoing court proceedings to a level which, within the overall context, is highly likely to cause significant harm to his emotional development and future mental health, with a secondary impact on his social and educational development." In her second letter, Dr JP said "there is a high risk that [Q] will be unable to be emotionally available for therapy while the court proceedings continue and this is highly likely to seriously affect central aspects of his emotional development."
17. The guardian's position before us was summarised in this way by Ms Bradley:

"This is a case where, over almost 7 years, numerous resources, by way of mediation, professional and therapeutic support, have been put in place for the parents and the child. Despite this input and seven years of litigation little, if any progress has been made in improving the child's relationship with his father. The guardian has carefully advanced and explored the various options during the course of these proceedings and is of the view, as she was in August 2014, that given Q's entrenched opposition to contact the only potential for progress is through therapy for Q and joint mediation for the parents. Whilst the former is now underway, the latter has not progressed due to the father's opposition to contributing to or paying the costs and to meeting with the mother in mediation sessions. The guardian's position is that both of these are required if the obstructions to contact are to be successfully addressed and overcome, the responsibility for resolving the contact dispute lying with both parents.

It is the guardian's position, as it was at the hearing in August 2014, that the child needs for the proceedings to conclude. The issue of whether the child can have contact with his father cannot sadly be answered now. He needs therapy and one of the outcomes of the therapy could be contact, but that would have to be considered at a time when the therapy has had the opportunity to have an effect."

18. Inevitably in these circumstances the debate before us, putting it in legal terms, has focused on the intersection between two sets of principles.
19. The first are the principles which I sought to distil in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, para 47, as follows:

"• Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

• Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.

• There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

• The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

• The key question, which requires 'stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

• All that said, at the end of the day the welfare of the child is paramount; 'the child's interest must have precedence over any other consideration.'"

20. The most recent in-depth analysis of the case-law is to be found in the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999, [2013] 1 FLR 494, to which we were referred. He drew attention to the decision of the Strasbourg court in Gluhakovic v Croatia (Application number 21188/09) [2011] 2 FLR 294, para 57, to the effect that obligation upon authorities, including the court, is not absolute and, whilst authorities must do their utmost to facilitate the cooperation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms, of all concerned must be taken into account, and more particularly so must the best interests of the child.
21. The other principles relate to case management. We were taken to my judgment in Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, paras 14-15:

"14 … These … are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

15 The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further."

22. We were also taken to the observations of Wall LJ in Re H (Contact: Domestic Violence) [2005] EWCA Civ 1404, [2006] 1 FLR 943, para 106:

"Of course, an experienced judge can cut corners and make substantive orders on short appointments. But if a judge is to take that course, he must be very sure of his ground, and demonstrate clearly that he has taken all relevant considerations into account."

23. The father's case, as formulated by counsel then acting for him in the skeleton argument to which I have referred, can be summarised as follows:

i) There was procedural irregularity: The essential argument is that Judge Brasse was wrong summarily to determine the application and to bring the proceedings to an end at a one-hour review hearing without hearing oral evidence from the parties, allowing cross-examination of the guardian and allowing the father to cross-examine the mother as to her alleged commitment to therapy. What he should have done, it is said, was list the matter for a further contested hearing on oral evidence. It is submitted that Judge Brasse went outside the permissible as contemplated in Re C (Family Proceedings: Case Management) and fell into the trap identified in Re H (Contact: Domestic Violence). Amongst a number of supporting arguments, it is pointed out that there had been no evidence from the parties, written or oral, since 2012. Stress is laid on the assertion that the potential consequence for Q of not making a child arrangements order is the loss of his relationship with his father.

ii) Judge Brasse was wrong in bringing the proceedings to an end without making a child arrangements order: Given his own findings, he should have directed a section 37 report. He should have pursued the strategy he had set out as recently as January 2014 and again approved in June 2014. He failed to explain why he was departing so radically from a strategy so recently approved. In support of the argument that his decision was simply wrong, stress is understandably laid on the judge's own findings, on the one hand damning of the mother, on the other hand, acknowledging the facts that contact presents no risk to Q, has almost always been positive for him and would be damaging for Q if terminated.

iii) In the circumstances, and having regard to all these matters, the process has not been compatible with the father's Article 6 and Article 8 rights.

24. The father supplemented these legal arguments with his own powerful submissions that Q was growing up, as Judge Brasse recognised, in a household where he was being fed a completely distorted view of his father; that he (the father) had, unlike the mother, done everything asked of him; that Q was being denied a relationship not merely with his father but with his wider paternal family, and was thereby being denied that part of his heritage; and that the mother was selfishly motivated to monopolise her son. He said that he had never asked for Q to be removed from his mothers care. He submitted that the judge ought to have treated the mother as a vexatious litigant. The time had now come when the judge should have been prepared to consider a change of residence, at least until such time as the mother was prepared to facilitate contact. He asked us to remit the matter for a final hearing, with evidence.
25. On behalf of Q's guardian, Ms Bradley pointed out that, with his long and detailed exposure to the case, Judge Brasse was well placed to form a view of how matters stood in August 2014, albeit that he heard no evidence. She points to the intensity of Q's hostility to contact with his father, apparent in the most recent contact and other reports. She submits that the judge undertook the necessary evaluative balancing exercise, having regard to all the factors in the 'welfare checklist' in section 1(3) of the Children Act 1989, identifying, evaluating and balancing, on the one side, the harm being caused to Q by his mother's influence and which he would suffer if deprived of his relationship with his father and, on the other side, the harm he would suffer if forced against his wishes to have contact with his father. The judge, she says, carefully considered all the options open to him and evaluated each in turn. He was justified in concluding that nothing was to be gained by listing the matter for a further hearing. Given the real issue at the heart of the case, neither a section 37 report nor a fact-finding hearing would have assisted the judge, nor, she says, would they have assisted in diffusing the parental conflict. In doing what he did, Judge Brasse, she submits, chose the only realistically workable option for preserving Q's relationship with his father. He appropriately took a long term view, aware that any attempt to impose immediate contact was almost bound to fail. She points out that, although it did conclude these proceedings, the order was effectively not final, contemplating, as it did, the possible resumption of litigation in future. The appeal, she submitted, should be dismissed.
26. In my judgment, Judge Brasse, faced with an almost impossible situation, took a course which was not merely open to him but which was, in reality, probably the only course that stood the slightest chance of achieving what was so pressingly needed – the resumption of Q's relationship with his father.
27. The judge was acutely conscious of the desperate position in which Q and his parents now find themselves. He was, rightly, unsparing in his criticism of the mother and unflinching in his analysis of the harm she was causing Q. But he was faced with what he realised was the reality, that the strategy he had hitherto adopted had not worked, in circumstances where, moreover, there was no reason to think that this strategy would work in future. He was realistic in his appraisal, securely founded in the materials before him, that any further attempt to enforce contact by force of law was almost bound to fail and, at the same time, be harmful to Q. He was, in my judgment, entirely justified in concluding that a further hearing, with or without a section 37 report, was most unlikely either to tell him anything he did not already know or to bring about any change in parental attitudes. He was sensible in thinking that therapy might achieve what all previous interventions had failed to achieve and justified in deciding that this was the best way forward. It was, after all, something that had been recommended in the past by Dr CL. He was plainly entitled to accept the advice of the Violet Mechett Clinic, as commended to him by the guardian, and repeated by Dr JP more recently, that therapy required a cessation of the proceedings.
28. In my judgment, it is quite impossible for us to interfere with Judge Brasse's decision. He was entitled to decide as he did and for the reasons he gave. Indeed, I would go further: I suspect that if I had been where he was I would have come to precisely the same conclusion.
29. In my judgment, in deciding to proceed as he did, Judge Brasse was acting well within the latitude afforded him by the principles explained in Re C (Family Proceedings: Case Management) and he did not offend the principles set out in Re C (A Child) (Suspension of Contact). His decision to proceed as he did was not premature. He was not abdicating his responsibility to do everything in his power to attempt to promote contact. He was not abandoning the ongoing judicial duty to reconstitute the relationship between Q and his father. He was engaging with an, albeit non-judicial, method which he hoped might prove effective where merely judicial methods had failed. The very terms of his order, as I have set it out, show that he contemplated a future role for the court. I reject the complaint that there has been a breach of either Article 6 or Article 8.
30. It was for these reasons that I agreed with my Lords that the appeal had to be dismissed.
31. I would not want the mother to think she has won. She has not. There are no winners here, only losers. Q is far and away the greatest loser – and that, in overwhelming measure, is because of his mother's behaviour. I urge her again, as I urged her during the hearing, to reflect on Judge Brasse's findings. They are an indictment of her parental failings hitherto. She, and Q, now stand at the cross-roads. It is vital, absolutely vital, that she participates, with Q and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. Sooner or later, and probably sooner than she would hope, Q will discover the truth – the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.

Lord Justice Underhill :

32. I agree.

Mr Justice Hildyard :

33. I also agree.