England and Wales County Court (Family)

IN THE BARNET COUNTY COURT

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF:
"A" a boy d.o.b. 17.4.01 (age 12 years 6months)
"B", a girl, d.o.b. 29.3.04 (age 9 years 6 months) and
"C", a boy, d.o.b. 24.10.05 (age almost 8)

		15 October 2013

Introduction

1. This judgment relates to the application made by the Applicant father on 1 October 2013 for an order making the children parties to these private law proceedings and appointing a Guardian to represent them, pursuant to Rule 16(4) of the Family Proceedings Rules 2010. It should be read together with the judgment "First Judgment" which I handed down on 12 June 2013, following a fact finding hearing. The father's application for permission to appeal the findings set out in my judgment dated 12 June 2013 was refused by the Court of Appeal on 17 September 2013. The order provides that no appeal may be made to the Supreme Court, but I understand that the father is considering taking the matter further.
2. The father first made this application on 2 August 2013 when I refused it but gave him leave to renew it. At the hearing 1 October 2013 there was insufficient time to hear his renewed application. The parties sent me written submissions by 10 October 2013.
3. The Respondent mother opposes the application.

The law

4. The application is governed by the Family Procedure Rules 2010 and Practice Directions.
5. Rule 16.2 provides that "The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so."
6. Practice Direction 16A para 7.1 provides that "Making the child a party to proceedings is a step that will only be taken in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases. Before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking an officer of the Service or a Welsh family proceedings officer to carry out further work or by making a referral to social services or, possible by obtaining expert evidence."
7. Paragraph 7.2 notes that the decision to make a child a party will depend on the facts and circumstances of the particular case and sets out, by way of guidance, circumstances which may justify the making of an order. Those which are relevant to this application are:

(a) Where an officer of the Service has notified the court that in his opinion the child should be made a party

(b) Where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties

(c) Where there is an intractable dispute over residence or contact, including where all contact has ceased or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute

(d) Where the views of the court cannot be adequately met by a reporter to the court".

8. Paragraph 7.3 notes that separate representation of the child may involve delay and when deciding to direct that a child be made a party, the court will take into account the risk of delay or other facts adverse to the welfare of the child. In this connection I bear in mind section 1 (2) Children Act 1989 which refers to the general principle that "any delay in determining the question (in relation to the upbringing of the child) is likely to prejudice the welfare of the child".

Background

9. This case has a long and complex history which is set out in detail in my first judgment.
10. In summary, the parents married in 1991. They separated in December 2009 and attempted reconciliation in September 2011. It was not successful and in July 2012 the mother issued a divorce petition. The father left the family home at the end of October 2012 and the mother obtained a Decree Nisi on 13^th November 2012.
11. After the father left the family home, the children had staying contact with him at his mother's home, where he lives, every weekend from Friday at 4 pm to Saturday at 7 pm.

The Cafcass reports

12. This case was allocated to Mrs. Christina Lemonides, a Family Court Adviser, with some 22 years' experience, who has prepared five reports for the court.
13. In her first report, dated 1^st October 2012, Mrs Lemonides expressed concern about the mother's allegations of domestic violence and abusive and controlling behaviour by the father. She suggested that the court should consider listing a fact finding hearing: she could not advise about residence and contact while the risks were unknown. A further risk assessment by the Domestic Violence Intervention Project might be necessary. DJ Johns ordered the fact finding hearing which eventually came before me in May 2013.
14. An addendum report dated 12 December 2012 dealt with the outcome of social services assessment.
15. Mrs Lemonides prepared a report dated 25 March 2013 setting out the children's wishes and feelings with regard to contact. She had met all three children in September 2012 in the course of the preparation of her first report and met them again on 13 March 2013, both together and individually. A and B completed the Cafcass "How it looks to me" book. She set out each of the children's views in detail [Supplemental bundle C5-7] They all wanted to see their father; they enjoyed spending time with their paternal family, especially their cousins; they were worried about arguments between their parents, conducted either face to face or through these proceedings; they were worried about future arrangements.
16. Following the fact finding hearing, at a hearing on 14 June 2013, I ordered Mrs Lemonides to file and serve by 19 July 2013 an addendum report on her recommendations and the children's wishes and feelings with regard to a shared residence order and holiday contact. I listed the final hearing on 18 and 19 September 2013 and ordered Mrs Lemonides to attend court on 18 September to give evidence. I listed a pre-trial hearing on 2 August 2013.
17. I also made an order for the children to have contact with the father in accordance with a three-week cycle, preserving the pattern of one overnight stay per week at the home of the paternal grandmother or one of the paternal aunts, regulating indirect contact and clarifying issues with regard to contact handovers, including the return time and the fact that the father was not permitted to approach the family home. I made the contact order conditional upon the father adhering to the order and permitted the mother to suspend contact if he were in breach of any of the conditions.
18. In preparation for the pre-trial hearing on 2 August 2013 I looked in the court file for any updating documents. As I subsequently wrote to Linda Kim-Newby the Cafcass Senior Service Manager, North London Private Law: "I discovered late in the afternoon of 1 August 2013, as I began to prepare for a hearing on Friday 2 August, that Mrs Lemonides had prepared two reports, both dated 22^nd July 2013. One had been served on the parties. It expressed deep concerns about the father's behaviour and the risks it carries, especially for the children and recommended that he should undergo a DVIP assessment and attend a parenting course. It did not contain any direct recommendation as to the division of the children's time between their parents or the type of residence order I should make.
19. I was not aware that Mrs Lemonides intended to file and had filed a second report. I discovered it on the court file by chance.  It had not been sent to the parties and so was not in the court bundle… Mrs Lemonides had carried out a risk assessment and concluded that the father's contact with the children should be suspended at the hearing on 2 August 2013. In her report Mrs Lemonides explained that she had not sent the report to the parties because she was worried about the father's response to her further recommendation, in particular about what he might say to the children."
20. My concern was that neither I nor the parties had had notice of Mrs Lemonides' recommendation that contact be suspended at the hearing on 2 August. I did not take issue with her recommendation per se, which I would consider as part of the evidence.

The hearing on 2 August 2013

21. The father was represented: at some hearings he is in person. I invited counsel to consider the report with their clients. The mother made an application to suspend contact which the father opposed and I refused having come to the view that suspension would be a draconian decision in circumstances where there had been contact throughout the proceedings; prior to seeing Mrs Lemonides' second report, the mother had proposed that contact continue; the parties had no notice of the report; the matter had not been listed for a contested hearing; Mrs Lemonides was not available to give evidence and the matter was listed for final hearing in September. 
22. The case was further listed on Tuesday 3 September when I would consider: the progress of contact – the mother wanted time to consider her position in the long term - and the father's application that I make the children parties to the proceedings and appoint a Rule 16(4) Guardian from NYASS.

The application on 3 September 2013

23. In his position statement dated 30 August 2013, for the hearing listed on 3 September 2013 the father applied for the appointment of a Guardian for the children and if appointed the court should adjourn the hearing listed for 18 September 2013 to allow the Guardian time to meet the children and prepare a report and for an order that Mrs Lemonides be removed from the case and her previous reports to be removed from the court file.
24. I indicated that it would not be appropriate to disregard Mrs Lemonides' report when she had not had an opportunity to consider the parties' or the court's concerns nor to give evidence. I did not consider that her earlier reports were tainted: she had set out the children's wishes and feelings and in her first report dated 19 July 2013 (which she had served on the parties) she had explained her reasons for not seeing them again. She noted that the father had questioned them about her previous report and forced them to write to the judge, about which I had made a finding [Supplemental bundle C21, paragraph 19 and First Judgment paragraphs 229 – 244]
25. The father wished to pursue his application. Counsel submitted that: Mrs Lemonides had acted in an unprofessional manner by filing a second report without discussing it with the parties or serving it on them; therefore the court could not rely on her recommendations; she had not adequately reflected the children's views; she had not adequately considered the impact on the children of contact being suspended; hers should not be the sole independent voice and expert evidence might be required; a Children's Guardian should advise on expert evidence; the mother was hostile to contact; I should discharge Mrs Lemonides immediately.
26. The mother opposed the application on the basis that: the proceedings would be delayed; she was not implacably opposed to contact, the children continued to have contact with their father in accordance with the court's order and she had proposed additional contact for Eid and C's birthday; she was concerned that if a Guardian were appointed the father would try to put pressure on the children and manipulate them, as he did prior to the fact finding hearing and as reflected in my finding of fact [see paragraph 24 above]; the children are aware of the proceedings and separate representation would draw them further into the conflict between their parents.
27. The mother was also concerned that the children would have to be seen by another professional. In 2012 they had been seen by a social worker from the London Borough of Barnet following a referral by the family's GP and they attended three sessions of counselling at the Children and Adolescent Mental Health Service between October and December 2012. Mrs Lemonides made a further referral to Barnet social services in July 2013 and a social worker had recently contacted the mother. A Guardian's role throughout the proceedings would be intrusive.
28. I refused the father's applications. As previously indicated, I was not able to take a view of Mrs Lemonides' report in the absence of her evidence. I considered that the mother is not intractably opposed to contact and had sustained it when others might not have done so. An assessment by a child and adolescent psychiatrist might be required to fill a gap in the evidence and I asked the parties to consider this.
29. I was made aware that the hearing of the father's application for permission for leave to appeal my fact finding judgment was listed for hearing on 17 September 2013 so that the final hearing would be unlikely to proceed as listed. I decided to use 18 September to hear Mrs Lemonides' evidence. Unfortunately that hearing was put back to 1 October because of Mrs Lemonides' ill-health but on that date her evidence was not concluded.

The application dated 1 October 2013

30. In his written submissions the father again asserts that: the mother continues to be hostile to contact; their dispute with regard to residence and contact is intractable; the children's views have not been adequately taken into account; they may be harmed by the contact dispute; and the court cannot have confidence in Cafcass.
31. The father alleges that the mother seeks to undermine contact e.g. by criticising him for planning to build a blast furnace with A and allowing him to use a saw. He analyses Mrs Lemonides' evidence, describes her as "entirely unreliable and unprofessional" and unable to distinguish between facts and assumptions or opinions. He asserts that at age 12, A should be a party in order to have a greater opportunity to express his views.
32. The father had agreed to the instruction of Dr Gary John Wannan a child and adolescent psychiatrist, to report on the children, their relationships with their parents, residence, contact and the impact on the children if contact continues and if it were to be suspended. However, he considers that Dr Wannan will not be able to "solve the problem of the mother's inherent and implacable hostility to contact or prevent the risk of harm to the children as a result of acrimony surrounding the intractable dispute between the parties". Dr Wannan's report is to be filed and served on by 25 November 2013 therefore the appointment of a Guardian will not cause further delay.
33. The mother repeats her reasons for opposing the application on 3 September 2013. In addition she notes that in her oral evidence Mrs Lemonides did not support separate representation of the children and was concerned that this could "pathologise" them when in her view it is the father who "needs to sort himself out".

Discussion/decision

34. I have considered the applications carefully. As regards Mrs Lemonides, her evidence is incomplete. I will hear the remainder at the final hearing in December and will then consider what weight to give her reports and evidence.
35. As regards the application that the children be made parties and a Guardian appointed, I have considered the guidance set out in PD 16A. As suggested in paragraph 7.1, I have ordered an assessment and report by Dr Wannan and indicated that he will be required to give evidence at the hearing in December.
36. Considering the guidance set out in paragraph 7.2, I note that neither Mrs Lemonides nor Ms Kim-Newby considers that the children should be made parties. When I raised this question in correspondence with Ms Kim-Newby she wrote: "I am wondering what would be the added value by the Guardian to the case.  In many cases, the more conflict the child is exposed, the less one can give to the child's W&F.   Is the case about long term parenting capacity issues and risks in relation to concerns of emotional harm to the child. What would we want to see accomplished with the appointment of a Guardian that we would not see otherwise."
37. The children's views are known to the court from Mrs Lemonides' earlier work and I expect will be referred to in Dr Wannan's report.
38. I do not consider that this is an intractable dispute in the sense that one parent is implacably opposed to the children having contact with the other parent. The mother has concerns about contact. She changed her position at the hearing on 2 August 2013 having had Mrs Lemonides' second report and recommendation for suspension of contact sprung on her at court. She has since offered further contact. She has repeatedly said that she will be guided by the professionals and the court. She has kept contact going.
39. By contrast and as a result of my findings I have made the father's contact conditional upon his behaviour [order dated 14 June 2013 paragraph 5j, supplemental bundle A112]. In order to prevent the children from being drawn further into these proceedings and to reduce the risk of harm to them I required undertakings from the father, which he gave on 2 August 2013, not to discuss these proceedings or contact with the children. [Supplemental bundle A 129] There is some force in the mother's concern that if I were to appoint a Guardian, the father might try to put pressure on the children.
40. The parents' positions with regard to residence and contact are very different but that does not mean that it is an intractable dispute, nor that separate representation and the appointment of a Guardian will assist.
41. For all these reasons the application is dismissed.

HHJ Levy

42. October 2013