Case No:   LE14P50535

IN THE FAMILY COURT SITTING AT DERBY

BEFORE HIS HONOUR JUDGE BELLAMY

(Judgment given on 19 December 2017)

Re J (A Child: Intractable Contact)

The Applicant father appeared in person

The Respondent mother did not attend and was not represented

The child was represented by Mr Jason Burnett, solicitor

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.

1.              JUDGE BELLAMY:  This afternoon, a wholly deserving and tearful father has asked the court for permission to withdraw his application to enable him to spend time with his son.  It is poignant that that application comes before me just six days before Christmas. 

2.              The application concerns J.  J will be 7 years old tomorrow.  His parents began a relationship in 2010.  They separated in January 2011 when J was just two weeks old.  J has been at the centre of an intractable, high conflict dispute between his parents since he was 3 months old.  In July 2014, J was made a party to the proceedings and a Children's Guardian appointed for him pursuant to the provisions of rule 16.4 of the Family Procedure Rules 2010. 

3.              My first involvement in the case was in 2015.  In the summer of 2015, I conducted a finding of fact hearing.  I handed down a reserved written judgment on 11 September 2015.  At paragraphs 4 to 37 of that judgment I set out the background history on a year by year basis.  I noted that there had been court hearings between these parents in every calendar year between 2011 and 2015.  The purpose of the finding of fact hearing was to investigate the mother's allegations that the father had physically and sexually abused J.  At the end of the hearing, I concluded that the mother had not satisfied me on the simple balance of probabilities that any of her allegations were true.  It follows, therefore, as a matter of law, that the incidents she complains about are deemed not to have occurred.

4.              It is appropriate that I should set out in full the final two paragraphs of that judgment:

"109. After careful reflection, I have come to the conclusion that I am satisfied on the simple balance of probabilities that the mother has emotionally abused J.  In arriving at that conclusion, I have regard in particular to the frequency of the mother's interrogations of J, to her video and audio recording of J and to her past unilateral decisions to withhold contact on a whim."

I pause there to say that in the two years since I gave that judgment, nothing that I have heard or read has caused me to doubt that the finding I made was an appropriate finding to make on the evidence before me.  I continued:

"110. A way forward must now be found that will secure J's relationship with both of his parents and at the same time secure his emotional wellbeing."

5.              Fine words, but they have failed.  There was no appeal against that judgment.  Any hope that progress might be made has proved to be fanciful.  There has been a psychological assessment of J and of both of his parents by a very experienced Child & Family Psychologist, Dr Gill I'Anson.  In accordance with Dr I'Anson's recommendation, both parents and J have undergone therapy.  That has made no difference to the position concerning the father's relationship with his son. 

6.              There was no agreement concerning the appropriate welfare outcome of the proceedings, as a result of which that issue was listed before me for a contested two day final hearing in September 2016. That hearing was not concluded at the end of day two and had to be adjourned part-heard.  There was a gap between days two and three.  During that gap, some progress was made.  Arrangements were made for some contact to take place.  By day three, the parents were agreed that J should continue to see his father.  On 28 September 2016, I made a detailed order. It was intended to be a final order.  That order included an agreed provision for the father to have alternate weekend staying contact with J from Friday until Sunday.  That was the centrepiece of the order.  There were other issues upon which the parents were unable to agree, including the date when the alternate weekend staying contact should start. I resolved those issues and made orders. 

7.              The agreed weekend staying contact got off to a bad start.  As a result, the mother made an application to the Court of Appeal for leave to appeal against my order of 28 September.  On 2 November 2016, the mother was given leave to withdraw her appeal and instead decided that she would pursue an application to vary the order of 28 September.  The father issued an application to enforce the order of 28 September. 

8.              On 24 November 2016, I made an order under section 37 of the Children Act 1989 requiring Derbyshire County Council to investigate and report.  At that hearing, the father sent a letter to the court asking leave to withdraw the proceedings.  I did not accede to his request.  I did not consider that to be in J’s best welfare interests. All applications were adjourned to 16 March 2017. 

9.              In the meantime, the local authority completed a section 37 investigation.  The work was allocated to a social worker, AC.  Her detailed report is dated 24 January 2017.  In her report she concluded that there was no basis for commencing care proceedings but proposed instead that J should be subject to a child in need plan.  AC had not seen any of the papers on the court file prior to writing her report and in particular had not seen my judgment of September 2015. 

10.          The father renewed his application for leave to withdraw the proceedings.  That application was opposed by the Children's Guardian who did not consider withdrawal of the proceedings to be in J's best welfare interests. I gave directions for the investigation of allegations made by each parent by way of a further finding of fact hearing.  That hearing was listed to take place on 17 and 18 May and was fully timetabled through to that hearing. 

11.          Belatedly, the mother applied for leave to appeal against the case management orders, including the order for the fact-finding hearing.  That inevitably led to the hearing on 17 and 18 May being vacated.  On 23 August 2017, the mother's application for leave to appeal against the case management orders was refused by the single judge as being totally without merit.

12.          On 25 July 2017, the mother applied for a child arrangements order, seeking an order that J should live with her and that the father should have indirect contact only.  There was a further case management hearing on 7 September at which directions were given. 

13.          Once again the mother applied to the Court of Appeal for permission to appeal against the case management directions given by the court.  On 6 October the mother's application for leave to appeal was refused.  Once again, it was refused on the basis that it was totally without merit. 

14.          The case was listed for a finding of fact hearing on 18 and 19 December.  On the morning of 18 December (yesterday) the solicitor for the Children's Guardian was contacted by the mother's partner to inform him that the mother had had an accident and was at hospital with a suspected fracture.  Further enquiries elicited the information that the accident had occurred at around midday on Sunday, 17 December, that the mother had gone to hospital on the morning of 18 December, that because of the extent of the swelling, the x-ray was inconclusive, but that it was thought possible that she may have sustained a fracture.  An appointment was made to see the mother again at hospital later this week.

15.          The mother is a litigant in person.  It is clear that in view of her unfortunate accident, the hearing listed on 18 and 19 December could not proceed.  The father is also a litigant in person.  He still seeks leave to withdraw his application and bring an end to this litigation.  I adjourned his application overnight to enable the local authority to file evidence as to its position if I were to give leave to the father to withdraw his application.  I also ordered the mother to file medical evidence as to her inability to attend court. Although she has filed a certificate from her GP, it is a certificate saying that she is not fit to work and does not say that she is not fit to come to court. 

16.          The local authority's position, which has changed during the course of today's hearing, is that it will continue to keep watch of J under a Child in Need plan for at least the next six months; that it will hold Child in Need meetings at least every four weeks instead of the normal six weeks, and that it will support indirect contact by meeting with J both at home and in school to read to him any letters and cards which the father may send and to hand over presents from the father. 

17.          This little boy has been the subject of a Child in Need plan for the best part of the last 12 months. As I understand it, during that period of time there have been only two Child in Need meetings.  If that is true, that is, I regret to say, lamentable.  

18.          I am assured today by the local authority that the six months period for the Child in Need plan to remain in place is a minimum period and that the local authority does not have a closed mind about that period being extended. 

19.          The father's position today, as I have already indicated, is that he still wishes to withdraw his application.  He takes that position not because he does not love his son – indeed, I am in absolutely no doubt that he loves J a great deal – or that he has lost interest in this litigation.  These proceedings are emotionally distressing for the father.  He is immensely frustrated that, as he would see it, this mother has deliberately flouted orders made by this court and the court has appeared powerless to do anything about it.  As he rightly points out, two years ago the court made a clear finding that J's mother has emotionally abused J, yet the court has not been able to deliver an outcome that helps J to recover from that abuse or prevent that abuse from continuing into the future. 

20.          From the father's perspective, continuation of these proceedings may well do more harm than good so far as J is concerned.  After seven continuous years of litigation – litigation which has singularly failed to enable him to have a meaningful relationship with his son – it is time to give up the fight and, although he does not put it in these emotive terms, to admit defeat.  The Children's Guardian shares the father's concerns. She now supports his application to withdraw the proceedings and shares his views as to the reasons why they should be withdrawn. 

21.          There is clear research evidence that children whose parents separate do better as they grow up towards and into adult life if they are able to maintain a positive relationship with both of their parents.  I am acutely conscious of the fact that, in allowing this father's application to withdraw these proceedings, I am taking a step which may not be in the best long-term interests of this little boy.  However, with both misgivings and regret, I accept that it is appropriate to accede to the father's request to withdraw his application. 

22.          I have made a particular point about this father's undoubted love for his son.  When he is old enough to do so, and I accept that that is unlikely to be before he leaves school, it may be helpful to J to read this judgment.  He can be assured that his father's application to withdraw is not intended to be an abandonment of J, but a sacrifice made out of love.  This father has done more than many fathers would do to try to establish a positive relationship with his son. 

23.          The orders I propose to make today are these.  Firstly, there shall be a child arrangements order and the following shall be addressed as part of that order:

(a) that J should remain living with his mother;

(b) that the father should be allowed to have indirect contact with J by cards and presents to celebrate his birthday and Christmas, and also by cards and letters to be sent monthly;

(c) that for so long as J remains subject to a Child in Need plan, letters, cards and presents for J shall be sent to him via his allocated social worker;

(d) that the mother shall send to the father within seven days of receipt, copies of all written school reports and of all school photographs;

(e) that twice a year in June and in December, the mother shall send the father photographs of J; such photographs shall be colour photographs and shall not include the images of any other adult or child; such photographs may be provided to the father electronically if he agrees;

(f) that if J should require hospital treatment, whether as an inpatient or as an outpatient, the mother shall inform the father promptly; if J should require surgery or become dangerously ill, the mother shall inform the father immediately;

(g) that the mother shall not make any unilateral decision concerning choice of school for J but shall consult the father, providing him with details of any school being considered; the mother shall comply with this direction in timely fashion so that the father may have a real opportunity to contribute to the decision-making;

(h) that if the mother proposes to take J out of the jurisdiction, whether for a holiday or for some other purpose, she shall give the father not less than 14 days' notice indicating the country to be visited.

24.          I direct that there shall be a transcript of this judgment at public expense.  I further direct that a copy of this judgment be made available to the Director of Children Services for Derbyshire County Council.  If I had the power to do so, I would today make a family assistance order under section 16 of the Children Act 1989.  However, to do that I need the consent of all adult parties.  The mother is not in court to give her consent.  In light of my experience of this mother over the course of the last two years, I am doubtful that she would have been willing to give her consent if she had been here.  In my judgment it would not be proportionate to adjourn this hearing in the hope that she may be prepared to give her consent.  I agree with the father that today's hearing must bring an end to this long-running litigation.