England and Wales County Court (Family)

Neutral Citation Number: [2010] EWCC 15 (Fam)

see also: [2010] EWCC 14 (Fam)

 

In the County Court

 

 

Before:

HHJ X

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Between:

 

	A Father	Applicant
	And
	A Mother	Respondent

 

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Hearing dates: 11-March-2010

 

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WRITTEN REASONS

 

Judgement

 

1. Yesterday I gave judgment in this case which relates to the application of father to have contact to his daughter, W.

 

2. I came to the conclusion that  contact could only be by way of indirect contact at the present time, for the reasons that are more particularly set out in the judgment, and adjourned the drafting of the order until this afternoon to enable counsel to consider whether or not in the light of the evidence of the CAFCASS officer that the court would wish to consider appointing her as Guardian, whether I should make that order without a return date, or whether it was inevitable that if she was appointed Guardian that appointment should be with a  return date.

 

3.  It is very important in this case that in particular mother does not suffer any further anxiety arising out of the case.  I am concerned that as a continuing matter this is causing her distress.  However having come to the conclusion that this little girl should have an opportunity of having an awareness of her father and have a positive image presented of him to her, and that could only be done by way of indirect contact facilitated by Mrs G, the CAFCASS officer, I indicated in my judgment that there should be an appointment of Mrs G as the Guardian of W.

 

4. I have been asked, in effect, to revisit that decision by Mr R on the footing that mother is content for Mrs G to facilitate indirect contact and it is unnecessary to appoint Mrs G as the child’s Guardian.

 

5. I have reconsidered that matter in the light of the submissions advanced by Mr R on behalf of mother and Mr P on behalf of father, who is in favour of Mrs G’s formal appointment as the child’s Guardian.

 

6. The question of the appointment of a guardian arose very early in the evidence of Mrs G when she indicated that if the court was to consider direct contact and the mother was having difficulty a Guardian could be appointed and she suggested that she might be that person. 

 

7. As her evidence developed, and as it became apparent that direct contact had its difficulties and that the court may need to look at indirect contact at this stage, her evidence was in favour of the question of W’s paternity being addressed sooner rather than later on the basis that it was easier with a younger child.

 

8. Mrs G thought it was important to consider the appointment of a Guardian, particularly in the light of what was at least in part being threatened by the uncle.  Later on, towards the very end of her evidence, she concluded that the court should consider appointing a Guardian, should consider indirect contact in order to test father’s commitment and that indirect contact could be facilitated by her as Guardian.

 

9. Mr R submits that this was not a recommendation.  If it is not a recommendation it is very close to a recommendation, and clearly represents her thoughts as to how this matter could be best advanced.

 

10. Mrs G ’s present status in these proceedings is as CAFCASS officer.  Once these proceedings are at an end she ceases to have that role.  It is right that by agreement she could continue to assist the family on a voluntary basis, but, she would then not have an official role and if mother’s family chose to discontinue their co-operation, there would be nothing that she could do about it.  She could perhaps notify the court, although I suspect that it would be only if an application were made by father that one could revisit the matter, and then it would be necessary to seek her reappointment as the CAFCASS officer in that further application, and such a situation with all the potential for delay would be in no-one’s interests.

 

11. The advantage of her being a Guardian is that she would have a status.  She would be there to represent the interests of this little girl.  When one considers the issues that have arisen in this case this falls well within those criteria that are set out in the practice direction relating to the appointment of Guardians.  We have a CAFCASS officer who has indicated that the appointment of a Guardian is desirable.  One has the potential situation where the need of the child to have an awareness of her father is in conflict with the maternal family’s position.  The maternal family take the view that father has forfeited the right to have any contact at all.

 

12. This is an intractable dispute over contact.  Contact has ceased.  Certainly on the part of the maternal family, in particular the maternal grandmother and the maternal uncle, there is implacable hostility to contact, and as mother lives with her mother, the maternal grandmother, she is bound to be caught up with it.

 

13. This is a very young child who is unable to present her views to the court other than through a Guardian.

 

14. As I have said, I am anxious not to increase mother’s anxiety and certainly I do not have it in mind that this matter be brought back to the court in the near future. However I do think that it is necessary for Mrs G to be able to report back and it may be that father does not take advantage of what is offered and simply does not send letters, and cards to his daughter.  He has not done so in the past.  I am giving him that opportunity to do so and it may be that he simply does not take advantage of that.  Mrs G, as the Guardian, could simply report that fact and the court could then terminate the order relating to indirect contact. 

 

15. She might report back that letters have been sent and that she had endeavoured to read them to W but W became so distressed that it was counterproductive and should be brought to an end.  She might report that W was receptive and interested and indirect contact should continue, in which case the court would clearly be influenced by that.  She might report that W was sufficiently interested to make it proper to consider whether there should be some face-to-face direct contact supervised by her.  These are all possibilities.  Quite clearly, from W’s point of view, if any of these arise the court and the adults involved have a duty to look at them.

 

16. So, for those reasons I have come to the view that it is necessary that Mrs G be appointed Guardian for the child.

 

17. I am going to direct that she file a report by 4th February of next year and that the matter be listed before me on 8th March for a review.  The purpose of that review is to see whether or not the order for indirect contact should be brought to an end or should be continued, and whether or not there are any further steps that should be taken by the court in respect of the issue of contact.

 

18. My hope and expectation is that that is sufficiently far away to enable mother to relax a little, because it is not in the interests of this child that the mother be tense, and enable her to continue to co-operate with the Guardian simply to enable such letters and cards as are sent to be shown to her daughter. 

 

19. The Guardian will want to talk to mother about what is contemplated because, quite clearly, if, in fact, the letters or cards are sent, then W needs to be prepared and mother is probably the best person to do that, simply to tell her in the way that mother thinks is best that she will be receiving a card or letter from her father.  Of course, if nothing is sent, nothing should be said to cause W any anxiety or to create an expectation which is subsequently disappointed.

 

20. I do not envisage that anything is going to happen in the very near future but what will happen is, I suspect, that Mrs G will want to talk to mother and W.  There will then be a period of time when they wait to see if anything is received and if something is received then before anything is shown to W obviously it will be looked at to make sure there is nothing in it that is inappropriate and mother will have an opportunity of preparing W to receive the contents.

 

21. The whole purpose of this procedure is to enable W to have an awareness of her father, but in a way that is not disturbing to her and in a way that does not cause her any anxiety.

 

22. For the above reasons I make the order that I have indicated.

 

23. Now, there are some ancillary points that have arisen.  One is whether or not I should recite on the face of the order, in a way that has been drafted by counsel, specific findings made in the judgement.

 

24.  In my judgment I was obliged to make numerous findings of fact.  I can see the point that setting out some specific findings tends to highlight those without reference to other matters.  In a normal case, when you are having a fact finding hearing as a discrete hearing, the court has effectively to make an order setting out those findings that are made so that the CAFCASS officer and the parties can address the next stage of the hearing on the basis of those specific findings. However in this case I have proceeded to a final welfare hearing on the issues that are before me at present and it will not be necessary to make a further finding or a report prepared on the basis of those findings.  The issue in the future will be the extent to which, if at all, father has availed himself of the opportunity of indirect contact and the extent to which W has respondent positively to it.  Of course, if we got to the stage of considering whether or not there should be any direct contact, then those specific findings would be material because, of course, a child must be protected, as must mother. 

 

25. I have come to the conclusion that the better course is to have a preamble to the order which recites simply that the court found that father had used violence to mother, as more particularly set out in the judgment, on those two occasions.

 

26. The order will be as follows: upon the court finding that father assaulted mother in September and October 2005, as more particularly set out in the judgment herein, and upon hearing counsel, it is ordered that, - and I am going to make an order for residence simply so that there is no uncertainty or dispute about it.  It is not actually in issue.  I am also going to make an order and prohibition of removal from the jurisdiction, which, again, is not controversial.

 

27. So, it is ordered that

 

(1)    the child, W, date of birth (date given), do reside with the respondent mother;

 

(2)    the applicant father is hereby prohibited from removing W from the care of the respondent mother and from the jurisdiction of the courts of England and Wales;

 

(3)    there be indirect contact between the applicant father and the child W by way of cards, letters, presents, to be facilitated by Mrs G at her discretion;

 

(4)    Mrs G is appointed Guardian of W pursuant to Rule 9(5) of the Family Proceedings Rule 1991 and in respect of any future application the child is made a party to the application as the second respondent;

 

(5)    a transcript of the judgment herein shall be prepared at public expense and in the event that a copy of such judgment is not provided to any party, that party is entitled to apply for such a copy and the costs of obtaining the same is a necessary and proper charge on the party’s public funding certificate;

 

(6)    a copy of the judgment shall be delivered to the Guardian;

 

(7)    the Guardian shall prepare a report on the progress of indirect contact and in particular upon the extent to which the applicant availed himself of the opportunity of communicating with his daughter, and W’s response to such communications, such report to be prepared by 4th February 2011;

 

(8)    the matter be listed for review before myself at 10.00 a.m. on 8th March 2011 to consider whether the appointment of the Guardian should be discontinued,  whether the order for indirect contact should continue or whether consideration be given to that order being substituted by some other order.

 

(9)    there be liberty to apply

 

(10)  no order as to costs, save that the costs of any publicly funded party be assessed pursuant to their certificates.