England and Wales Family Court Decisions (other Judges)

IN THE MANCHESTER COUNTY COURT

		Civil Justice Centre Manchester M60 9DJ
		29th July 2014

JUDGMENT

THE JUDGE: Can I begin by expressing my gratitude to all of the advocates, particularly Mr Ficklin, who has kindly assisted the mother on a pro bono basis; I really do not see how she would have managed these proceedings without him.

I INTRODUCTION

1. I am concerned again with S, who was born on 24^th July of 2007, so S is now just 7.
2. S's mother is C, his father is D. Once again, I hope the parents will forgive if I refer to them as "the mother" and "the father" by way of shorthand.
3. S's Cafcass guardian is now Mr E.
4. This is the father's application for contact to S. Sadly, S has not enjoyed direct contact with his father since September 2011. The mother opposes the re-introduction of direct contact. Mr E on S's behalf has concluded that it would be contrary to S's welfare interests for such an order to be granted. He proposes that indirect contact continue, now on four occasions a year, and expressed the willingness of Cafcass to participate in a Cafcass monitoring order with a view to promoting and monitoring compliance with the indirect contact.
5. For the background to these proceedings reference can as necessary be made to the judgments of District Judge Fairclough at the conclusion of the fact finding hearing dated 2.3.2010 (found at F1 in the bundle) and following the full hearing of the father's application for contact, dated 30.8.2010 ( F 37). Reference may also be made to my judgments on appeal from the decisions of District Judge Fairclough dated 15^th July 2010 (F27) and 15^th February 2012 (F82)
6. For this hearing both parents and S have had the advantage of representation by counsel.
7. At the conclusion of the submissions yesterday I told the parties my decision but pressures of other work did not permit me to deliver a judgment explaining my reasons and hence I do so this morning. I have given leave for the parties and legal representatives to be absent today on the basis that I propose to direct a full transcript of this judgment. This judgment remains very much an extempore judgment and if any party seeks further clarification of my reasons they only need to ask.

II DEVELOPMENTS SINCE MY JUDGMENT OF 15^TH FEBRUARY 2012

8. I believe that what follows is agreed, but I will, no doubt, be informed if any party disputes any portion of this summary.
9. On 15^th February 2012, I declined to grant the father's appeal against the decision of District Judge Fairclough which in brief, suspended direct contact between A and his father.
10. The father appealed against my decision. His written application for permission was refused by Lord Justice McFarlane on 1^st June 2012. The father renewed the application in person before Lord Justice McFarlane on 25^th July 2012. Although that appeal was unsuccessful, I note Lord Justice McFarlane's observations at paragraphs 32 – 35 to which the father, rightly, attaches considerable weight.

Lord Justice McFarlane refers to the decision in Re W [2012] EWCA Civ 999 and says:

"The responsibility on parents who have the primary care of a child, in this case the mother, is to do what they have to do to meet their child's needs to have an ordinary and meaningful relationship with the other parent even if they themselves do not want it. Here, this mother has been told that the expectation is that she should undergo therapy to put herself in a better position to support her son in having a relationship with his father. I anticipate the very first thing the father will ask when, as he surely will, he returns to the court to ask again for contact is what has this mother done in the two year gap since the judge's order to meet her son's identified need for her to have therapy.

The needs of this little boy will include having a settled relationship with his father, just as he has one with his mother, unless there is a very good reason to the contrary. Parents are engaged in the task not just of looking after a child but in bringing up an adult and part of bringing up an adult is for that individual to feel comfortable about themselves, their identity and the relationships they have with their parents and with grandparents and other relatives on both sides of the family.

The ball is in the mother's court during this two year gap and I anticipate that the courts in Manchester will look to see what she has done and how she has best used that time to improve the life of her little boy in this most important regard."

With the very greatest of respect, I wholeheartedly agree.

11. There followed in March of 2012 an application by F, the grandmother, for contact to S which came before me and which I ultimately dismissed.
12. The mother was also investigated during July of 2012 by Greater Manchester Police because the father made a complaint of perjury against her.
13. This application was then issued on 14^th March of 2013. Following a short hearing on submissions on 10^th April 2013 I determined that the application was premature in the light of the earlier findings of the learned district judge and adjourned it to 14^th October 2013. I did not dismiss the application given the difficulties that would have inevitably caused in relation to the father's legal aid. The mother is in employment and has been unable to secure legal representation, save by way of the Bar Pro Bono Unit.
14. On 14^th October 2013 I gave standard directions for the filing of evidence and the preparation of a Cafcass report. I noted that, should the author of that report consider it appropriate to involve the previously appointed guardian, Miss G, before seeing S, then the matter should be referred back to me for further directions.
15. In the event, Mr E reported on 10^th February 2014. He was impressed with the father's manner during his enquiries but found it difficult to engage with C who strongly expressed the view that she would have preferred enquiries to be conducted on S's behalf by Miss G. In those circumstances Mr E brought the matter back to the court recommending that S be made a party to the proceedings and suggesting that Miss G be instructed to represent him once again.
16. At the next hearing on 18^th February of 2014 the parties were in agreement that S should, indeed, be made a party to the proceedings. I heard submissions as to the identity of his guardian, the mother urging that it be Miss G in the light of her previous involvement in the lengthy proceedings, the father contending for a CAFCASS officer. (Albeit that he had, on a previous occasion, argued for the appointment of Miss G from NYAS in preference to the then CAFCASS officer with whom he had disagreed.)
17. For the avoidance of any doubt, my mindset at that hearing, and indeed throughout these unhappy proceedings, has been to try to achieve a resolution which enabled A to see his father if that was feasible and in accordance with his welfare interests. I decided that it would be preferable for enquiries to be undertaken by somebody who came to the case afresh. I was conscious that the father would have found it very difficult to work with Miss G in the light of her recommendations during the earlier proceedings. I concluded that the involvement of somebody new represented the best chance for S and his father to enjoy direct contact
18. Accordingly, I granted party status to S and appointed Mr E, Cafcass officer, as his guardian. I directed a report from Mr E and position statements, listing the case for further directions on 9^th April. By that date, Mr E sought a further adjournment for him to undertake a planned piece of work with S so as to inform his recommendations. The case was adjourned once again to yesterday, 28^th July 2014, for an issues resolution hearing.
19. In the event, the case was ready to be heard. I had sufficient time in my list to hear it. Bearing in mind the lengthy delays since the proceedings got properly underway in October 2013, the provisions of section 1(2) of the Children Act 1989 and the overriding objective in the Family Procedure Rules, I requested the parties to proceed to a full hearing. Having had the assistance of position statements from the parents, I heard the evidence from Mr E first, essentially to investigate with him whether there was any route through the current "impasse" which might enable B to see his father. In the event, Mr E remained firm in the views he expressed in his 3 reports. He was subject to proper and searching cross-examination. He concluded, quite bluntly, "I don't see that it is feasible to try to embark on the process of establishing direct contact at this time".
20. I then heard oral evidence from the father and the mother and was assisted by submissions from the advocates. The oral evidence of the parents largely reflected their written statements.

III THE LEGAL FRAMEWORK

21. S's welfare is my paramount concern. I have reminded myself of the welfare checklist at section 1(3) of the Children Act 1989.
22. I have not been referred by counsel to any specific authority but I am acutely aware that decisions of the Court of Appeal have consistently and repeatedly emphasised the importance for any child of having the opportunity to enjoy a meaningful relationship with both of his parents. S has been deprived of that opportunity now for a period of nearly three years. Any further curtailment of his relationship with his father can only be justified if it is manifestly in accordance with his welfare. That approach not only reflects the court's obligations under domestic jurisprudence but also the rights of S and his father under Article 8 of the European Convention on Human Rights and Fundamental Freedoms to respect for their family life.
23. If I find that direct contact cannot be reintroduced in the short term, Miss Donaldson, on the father's behalf urges me to consider an adjournment of the proceedings for a period of perhaps six or up to twelve months requiring Mr E to file a further report at that stage and for me to then actively re-consider the possibility the introduction of direct contact. In discussion with Miss Donaldson, I pointed out that such an approach does not really accord with the philosophy of the private law pathway. Judges are required to address, expeditiously, the issue which a parent brings to court and then step back encouraging the parents to exercise their joint parental responsibility to reach decisions in the welfare interests of their child.
24. A Cafcass monitoring order can now be made under section 11(h) of the Children Act requesting Cafcass to monitor compliance with a contact order. Such a monitoring order could be made as an interim measure or pursuant to a final order.

IV MY FINDINGS

25. I begin with S's "wishes and feelings" because that has largely and rightly been the primary focus of Mr E's work as his guardian. I accept his evidence on these issues as reliable and thoughtful. He took time to build a relationship with S over some four visits to his home where he found him a responsive and attentive child. During those visits when he began to tentatively introduce the topic of "dad" and his cards, B expressed the view, "I don't have a dad".
26. The final visit took place at S's school on 3^rd July 2014 and is described in detail in Mr E's report at D16. On this occasion Mr E broached the subject of dad directly. He describes S as knowing who is dad is and understanding that his dad sends him cards. S described himself as "moody" which Mr E took to mean anxious/uncomfortable when discussing his father. He expressed a dislike of his father through the medium of a game involving throwing a ball but did not present as angry or distressed when his father was discussed. Mr E is confident that S does recall the routine and pattern of his father's visits, although he affects not to remember them.
27. Mr E summarises his position at paragraph 12, D18, and confirmed this view in oral evidence.

"In summary, I do not see any immediate or medium term prospect of S altering his view on corresponding with his dad, let alone resuming attempts at visits. I do not assess S as overtly hostile or threatened by letters and cards from his dad; rather, that he simply finds unsettling the whole question of his dad. There may be a number of reasons for this. I am satisfied though that continued correspondence by the father is in the child's interest."

Mr E is only able to speculate as to the reasons why S finds the subject of his father so anxiety provoking. He found no evidence that the mother was obstructive or undermining and comments that the cards which the father sends are kept available for S and that the maternal family has presented as supportive of his enquiries. He hypothesises that S is old enough to understand and recall the tensions and anxieties which previously surrounded contact and to worry that they may recur if he were to resume visits to his father.

28. Mr E accepts that, sadly, the passage of time has not improved S's willingness or desire to see his father. There is some evidence from the school where the mother also works and from the mother that following this last visit S was acutely distressed and took some weeks to settle. Mr E found that unsurprising. Although S did not present as distressed during his discussions, he suspects that subsequent distress was because he had pressed S directly about seeing his dad. He described it as, "not an unusual scenario".
29. So, sadly, the picture painted by Mr E, even if I disregard the mother's evidence on this issue which is to the same effect, is that S really does not wish to respond to his father's correspondence and certainly does not wish to see him.
30. Turning to S's "physical, emotional and educational needs", I accept Mr E's description of S as a happy, confident lad. His mother describes him as settled, cheerful and doing well. He is coping well at school but, of course, his emotional needs are not fully met. He also needs a relationship with his father if he is to have the opportunity of developing into a well-balanced adolescent and later adult.
31. "The likely effect on him of any change in his circumstances", is interlinked with "any harm which he is at risk of suffering". I fear that if required to meet his father at this juncture contrary to his wishes then S is likely to suffer emotional harm. I bear in mind that the previous proceedings will have taken their toll upon this little boy. On the other hand, time is running out for S to develop a meaningful relationship with his father.
32. As to S's "age, sex, background and characteristics", well he is now 7. As Mr E points out, he will increasingly form his own views and aspirations.
33. In terms of the "capacity" of his parents, I found the father's presentation unusual and in contrast to the earlier proceedings where he represented himself very capably. He was apparently unable or unwilling to make eye contact with anyone, staring downwards or at the wall. He appeared to feel defeated and bitter and that is not at all surprising. His inability to play a role in his son's life must be unimaginable painful. He concedes he has made mistakes in the past but, in my judgment, following the making of this application he has genuinely done his best to behave properly. The indirect contact has been as good as it could have been given that he is essentially communicating into a void. There is no evidence to suggest that he would not have the capacity to engage in contact visits in a child-focused and appropriate fashion. Indeed, a central conundrum in the previous proceedings was that observations of contact, at least superficially, were not worrying and it was S's subsequent responses which caused such alarm to his mother and H.
34. The mother was clearly still highly anxious and easily distressed. Like the father, she seemed exhausted by this whole process. She complains that she has not had the respite which District Judge Fairclough intended given the appeal, the police involvement, the application of the grandmother and then these proceedings in the spring of 2013. In her statement she says "I still feel that I am being emotionally abused. It has been a very difficult time and not having legal aid has left me feeling vulnerable. It has caused problems for my work and for me looking after my three children"
35. To her credit she has attended counselling sessions which she organised for herself at the Z centre, constituting some eleven sessions between November 2013 and April 2014. But although she has found counselling broadly beneficial, her anxieties in relation to contact have not been allayed.
36. She insists that S does not pick up on her anxieties and is unaffected by her distress, that she is supported by her daughters and that if she cannot cope they "step in". I am satisfied that S does not know of these proceedings and the mother seems to have managed to settle him after Mr E's visits but even assuming, as I do, that the mother is doing her very best for her son, I doubt if he is genuinely immune to her state of mind.

V THE BALANCING EXERCISE

37. I accept that the father is genuinely desperate to see his son. There is a simplicity to his approach, "I think the judge should just say I should see my son and that is it." and later, "The solution to all this is for me to see my son and for the pressure to be taken off him." He suggested that S should simply be told by Mr E, "Me and your dad are coming to watch you play football," or, "Dad and I will be in McDonald's and we'll see you there". He is quite clear that if contact resumed, S's life would be better and he would not feel so bad.
38. On the other hand, the mother remains opposed to direct contact at this stage. She says that S is not yet ready and he needs time to grow up and mature. She said, "I didn't know what upset him about the idea of seeing his father, the past maybe, I'm not sure". She insists that she remains supportive about the indirect contact and will continue trying to ensure, even if it is just a matter of good manners, that S will reply to his father's cards. She assures me that if S expressed any wish to see his father she will encourage him to do so. I fear that is an improbable scenario. She concluded her evidence by saying, "We need to be left alone as a family to achieve some normality".
39. Mr E's evidence, as I have indicated, was very clear. He expressed concern about the prospect of embarking on the kind of protracted proceedings which were ongoing from before S's first birthday until he was 4. He rejected the father's suggestion that, in effect, S should simply be taken to some appropriate venue and told, "Look, your father's here to see you," describing his reluctance to experiment with a child when he did not know what the outcome of the exercise would be. The father suggests that Mr E has failed really to move beyond his assessment of S's wishes and feelings to consider the relevant other features of the welfare checklist. Mr E was clear that his had been a holistic analysis, S's wishes and feelings linking to other aspects of his welfare. Mr E is, if I may say, a particularly experienced Cafcass officer with over 20 years of analysing private law disputes affecting children and it was readily apparent from his oral evidence that he had, indeed, analysed the broader issues with considerable care.
40. I have, of course, considered Miss Donaldson's submissions which she describes as "creative solutions" but I must reject them. This is not an appropriate case for a transfer of residence. S's welfare needs are met by his mother to a high standard, aside from the crucial issue of contact with his father. The parents already have shared parental responsibility. I am not sure how her proposals in relation to "shared residence" could possibly be encompassed within a child arrangements order. In any event the order would be fictional.
41. I have also considered whether it would be appropriate to make no decision at this stage and to adjourn these proceedings. To do so would, I think, be a disservice to the parties and to S himself. Both parents are already under inordinate stress. Certainly in the mother's case, continuing proceedings which have already been in progress for 9 months (arguably 14) will only reinforce her sense that she is "besieged", with the obvious risk of her opposition to direct contact becoming ever more entrenched and her increasing levels of anxiety having an adverse effect upon S.
42. The evidence is, I am extremely sad to say, really very clear. It is with considerable reluctance that I must conclude that S's welfare does not permit me to make an order for direct contact at this stage. The father has been unable to persuade me that there is a good and valid reason for me to disregard the evidence of Mr E who came to this case with a fresh pair of eyes, who has made careful enquiry, and whose overriding duty is to protect S's welfare interests.
43. The purpose of the monitoring order is for Mr E to be at the end of a telephone to relay to the father how S is getting on, to inform him of S's interests, schooling, activities, so that the father can write letters which are attuned to S. Mr E does not anticipate any direct work with S. I accept entirely the father's arguments that this may all lead nowhere but I am sorry to have to conclude that this is really the best that can be achieved at this stage in S's development. I am grateful to Mr E and to Cafcass for their offer of assistance.
44. I do not know when or if the right time will come for S to begin the process of deepening his relationship with his father so that indirect contact can move to direct contact. I remain of the view that that must be the ultimate aim.

VI ORDERS

45. I will reserve any further applications in relation to S to myself.
46. I will direct a transcript of this judgment.
47. I have seen a draft order from Miss Donaldson which has been approved by the other parties and it seems to me to reflect precisely what I have just directed.
[Judgment ends]