England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: B (a 14 year old boy)

		The Law Courts The Quayside Newcastle-Upon-Tyne NE1 3LA
		11th May 2017

JUDGMENT

HIS HONOUR JUDGE SIMON WOOD:

Introduction

1. The court is concerned with the welfare of B, a boy born on 10^th February 2003, now 14 years and 3 months old. He is the second son of M, his mother, and F, his father, a now long divorced but formerly married couple.
2. By an application dated 30^th December 2015, father applied for direct contact to B, whom he has not seen since February 2011. The mother responded by applying to the court to strike the application out, to discharge an order in place for indirect contact made on 19^th December 2012 and to seek an order pursuant to section 91(14) of the Children Act 1989 to prevent the father from making any further applications in respect of B until B reaches the age of 16 when the provisions of section 9(6) would effectively preclude any application unless the circumstances were shown to be exceptional.
3. At a hearing on 22^nd April 2016 Her Honour Judge Hudson refused the mother's application to strike the case out and directed that B be joined as a party pursuant to the Family Procedure Rules 2010, rule 16.4, and invited the National Youth Advocacy Service (NYAS) to act as B's children's guardian, accepting the representation of both the father and CAFCASS that the latter would not be the appropriate agency to accept the appointment.
4. Directions followed on 8^th July and 26^th September, the latter after the NYAS appointed guardian, CG2, had reported and it was listed for a final hearing before me on 9^th January. That hearing unfortunately had to be vacated due to the non-availability of CG2 and could not be relisted until 17^th April. It therefore has to be acknowledged that there has been a very long delay between the application and the hearing, almost 16 months. The delay between the two-day hearing in April and this judgment is explained by a combination of judicial commitments and annual leave.
5. That said, this short introduction reveals to anyone considering this judgment that this is anything but a straightforward application. It is in fact the sixth since the father first applied for contact on 17^th August 2009, an application which was successful in that a defined contact order was made on 4^th December of that year. That effectively ended with the events of February 2011. I will come to the history in a moment but it is appropriate here and now to set out the stark issues that the court is asked to determine.
6. The father maintains, as he has since sometime before December 2015, that this is a case of deliberate parental alienation of B by his mother, a form of abuse that has been compounded by him, the father, and B being serially let down by the professionals who are either untrained or incompetent, as well as the court, a process that has continued to the present time with CG2 recommending no contact and urging the father to withdraw his application. Maintaining that "there are plenty of options available to explore," he seeks findings of alienation against the mother and has presented papers that point to the merits of inflicting short term distress on B by forcing the issue on him contrary to his apparent wishes and feelings and he specifically invites either the joint approach by him and the mother to a reintroduction, subject to a recital or order that a change of residence be the next step, or a psychological assessment by a suitably qualified psychologist in respect of B.
7. Mother maintains that far from being a case of alienation what the father has consistently failed to acknowledge is his own part in the reluctance of B and his older brother, to whom I will come, to see him, instead focussing his barely concealed anger towards her that he is incapable of setting aside or using the litigation to harass her and her new husband. In his behaviour he thereby fails to demonstrate either empathy or insight into the impact that it has had on her and her sons.
8. The children's guardian has found no evidence of alienation. She is quite satisfied that she has a good understanding of B's wishes and feelings and, pointing to the sheer weariness caused by the litigation which he feels stigmatises him and she urges the father to step back, to listen to B and withdraw his application and focus on appropriate indirect contact as part of a process of building bridges.
9. The mother pursues her application for an order under section 91(14) on the basis that while she does not, contrary to her original position, seek to have discharged the order for indirect contact, she invites the court to make an order preventing any further applications being made. That is a position also supported by the children's guardian, as I will come to.

The History

10. It is not possible without making this judgment excessively long to set out each twist and turn in this very sad story. The papers are voluminous and include key documents from the previous four sets of proceedings, as well as four position statements from the father, three statements from the mother, the latter of which exhibits 130 pages of historic documents. In 2015 a decision of Mr Recorder Williams was appealed by the father to the Court of Appeal. Although the approach of that judge was criticised in a number of ways the appeal was dismissed.
11. One of the difficulties in summarising concisely is that so little is agreed and so, whilst I will refer to things that are a matter of record or opinion at a given time, it is not always the case that they are agreed, as I hope I will be able to explain.
12. The father was born in 1961 and is now 55. The mother was born in 1970 and is now 46. They married in 1997. A was born in 1998. He was 19 just before the hearing. B followed in 2003. They separated in 2006, the children remaining living with their mother save for a short period following separation when they lived with their father, and the parents were divorced the following year.
13. Difficulties existed in relation to contact almost from the outset, leading to the father's first application in August 2009 which, as I say, rapidly resolved with a defined order in December of that year. There is little meeting of minds as to the working and quality of contact between then and February 2011 when contact stopped, but the events of that month continue to preoccupy the parties.
14. Mother says she stopped contact because, on 5^th February 2011, the father left the children, A then 12 almost 13, and B just 8, at his home in Killingworth alone when he was having contact in order to go and watch Newcastle United play what became a famous game which kicked off at three o'clock against Arsenal when Newcastle came back from 4-0 to equalise. The father denies going to St James' Park at all but accepts that he left the children on their own for an hour to go and take his season ticket to a friend who was going to use it. In doing so, he denies that he did anything inappropriate, arguing that A was old enough to be left alone, but he did accept that he had "played straight into the mother's hands".
15. The papers suggest that it was the mother's case that this was a culmination of circumstances that had included non-compliance with terms of the defined order, the defacing of the children's homework book by writing inappropriately in it and an application by her in March 2010 to discharge the defined order and seek non-molestation orders, applications which were ultimately withdrawn. However, issues had continued and the father was issued with harassment notice on 18^th December 2010, breached 13 days later for which the father was subsequently arrested and cautioned. So when the children returned to her on 5^th February 2011, according to her, they were distressed, reporting that they had been left alone and she said that that was the final straw and issued another application on 23^rd February of that year in response to the father's application which had been issued the very next day, 12^th February, to vary the contact order that had been made the previous September.
16. In her analysis in June 2011, FCA, the family court advisor, felt unable to recommend unsupervised direct contact because of what she perceived to be the safeguarding concerns raised by the incident in February as well as disclosures that A made to her about how his father had behaved and how it worried and upset him.
17. Recognising the difficulty of this contest the court appointed a children's guardian and directed a psychological assessment of both parents. Andrew Kawalek was appointed and reported and I will have to consider that report in due course. In short, having found no significant concerns regarding the mother in terms of her feelings towards the father save for those that were secondary to concerns for her boys, and observed that she was able to prioritise them, their feelings and their changing needs, he nevertheless found serious concerns about the father. He was particularly troubled by his inability to place issues about the mother to one side in favour of the feelings and psychological wellbeing of the children as well as his standard of supervision and the monitoring that, to the father at any rate, appeared to be appropriate.
18. That no doubt fed into the opinion of the very experienced children's guardian, by then CG1, that she could not recommend direct contact and she urged the father to send the message to the children that he had listened to their views by withdrawing the application for contact.
19. The cross-applications eventually came for hearing on 19^th December 2012 before Mr Recorder Williams, when a consent order emerged whereby the boys would have mostly indirect contact with their father on the basis that there would be direct contact between the boys and their paternal grandparents. The schedule to the order went on, in effect, to leave it to A and B to decide if they wanted to see their father in the future. This latter part of the schedule was the subject of severe censure by the Court of Appeal subsequently because of it placing an inappropriate responsibility on the boys to make decisions which were those for the adults to make.
20. That aside, however, not only did the direct contact with the paternal grandparents never successfully get off the ground, and again the reasons are in dispute with the father alleging that the mother frustrated it and the mother countering that the father interfered with it to the point that it became unworkable and was rejected by the boys, but that arrangement, not surprisingly, never led to a resumption of contact with the father.
21. What happened thereafter is chronicled in the Court of Appeal judgment between paragraphs 9 and 18 inclusive, which I do not consider necessary to repeat here. Suffice it to say no progress was made and, although the Court of Appeal dismissed the father's appeal on 1^st December 2015, the application the court is now considering was issued by him on 30^th of that month.
22. Again, the delay to this final hearing is noted. I have sought to explain it as it appears on its face to be at odds with the provisions of section 1(3) of the Children Act which expressly notes that delay is likely to be prejudicial to the welfare of B in circumstances where that very welfare is the court's paramount consideration. This is nevertheless a complex case and it is a matter of regret that the resources the court has available to it are such that it has not been possible to list it for an effective hearing for over six months since the report of the guardian was filed.

The Hearing

23. This took place on 18^th and 19^th April, albeit other urgent court work occupied most of each of the mornings. The father has represented himself throughout with the assistance of a McKenzie Friend, who was entirely appropriate and, I am sure from observation, did indeed assist him. Mother was represented by Mrs Callaghan and B by Mr Cahill, both of counsel. Each of the mother and father have filed documents in accordance with Judge Hudson's directions, four position statements from father, two position statements and a witness statement with exhibits from mother. Some of those exhibits were from past litigation, some were much more recent. The guardian had filed her report. She explained how she had been unable to meet the father due to him being abroad prior to the date for it being filed, but she said she wrote to him on 25^th October and offered to meet with him in order to discuss it, knowing how disappointed he would be with its conclusion, an offer that she says he declined.
24. At the outset of the hearing in the first instance the father was very clear that he did not want to spend time dealing with recrimination, what he called 'tit-for-tat', albeit he said he would have to touch on some of the history. He said it was quite simply a case of alienation and he would be seeking to explore other techniques to reintroduce contact. He later agreed not to cross-examine the mother and invited me to question her on certain issues, which I did. The mother was very clear that she had not alienated the children but insisted that she relied on the children's wishes and feelings. It was suggested, on behalf of the children's guardian, that it may assist the parties and the court to hear her evidence first, a course that the court agreed to adopt albeit the guardian remained for the whole of the hearing and was available to express any further views having heard the parents, a course that ultimately was not necessary. In those circumstances the court heard, in order, the guardian, the father and the mother. I am not going to repeat their evidence here but I will refer to it extensively in discussing my assessment and analysis of the evidence having found seeing and hearing each of them extremely illuminating and helpful in considering what has gone wrong and prevented B and A from enjoying a normal relationship with their father.

The Law

25. In considering the evidence I have the legal principles by which the court must be guided at the forefront of my mind. The father helpfully took me to a 2014 decision of the Court of Appeal, Re: R (A Child) [2014] EWCA Civ 1664, where it allowed an appeal by a father who had been refused contact to his 12 year old daughter who was strongly opposed to seeing him. The principles there applied were not new ones and are very well known to this court, most lucidly summarised in the context of the European as well as the domestic jurisprudence by Lord Justice Munby as he then was in Re: C (A Child) [2011] EWCA Civ 521, whose language can readily be seen to have been adopted by the Court of Appeal in the case of Re: R.
26. What the judge in Re: C did was to reduce the fundamentals to the following bullet points:

(i) Contact between parent and a child is a fundamental element of family life and is almost always in the interests of the child;

(ii) Contact between parent and child is only to be terminated 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 would be detrimental to the child's welfare;

(iii) There is a positive obligation on the state, and therefore on the judge, to take measures to maintain and 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;

(iv) The court should take a medium term and long term view and not accord excessive weight to what appear to be likely to be short term or transient problems;

(v) The key question which requires strict 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;

(vi) All that said, at the end of the day the welfare of the child is paramount. The child's interests must have precedence over any other consideration.

27. Much the same, it has to be said, was said by the Court of Appeal in the appeal concerning B in November 2015 in summary form in paragraphs 20 to 21 and I bear that in mind as well.

The Parties' Contentions

28. I do here have to set out the various contentions of the parties at this stage.

The Father

29. The father put it very clearly and directly in his written evidence, his oral evidence, his cross-examination of the children's guardian and his submissions. In his earliest position statement he said this:

"I believe mother has purposely alienated our children from me. As a result I have not seen my children for five years and despite the protracted litigation over my contact with them for most of that time it would seem the family justice system has failed me. It all starts back in 2009 when after suffering immense intimidation from the respondent, her father and her new partner, now her husband, with constant threats, access denied if I did not agree to this and that and demands for money, I decided to seek the help of the court with a defined court order."

He goes on to develop that.

30. He, before me, described the events of February 2011 as "the whole backbone of the case". Having, as he saw it, a contact order that was working he said the mother broke it by stopping contact and he said that no one had got to the bottom of why. He had done nothing unlawful in leaving B with A, who was 13 years old and the mother simply used that as an excuse as part of a campaign of alienation evidenced by four factors:

(i) B wrote a letter to him when he was 7 calling him [by his forename] not "dad";

(ii) A changing his name by deed poll on achieving his majority in 2016;

(iii) The fact that the children had false memories of events that they purported to describe;

(iv) The failure of either boy to reply to any indirect contact over the entire period since 2011.

31. He also prays in aid a response of Mr Kawalek in evidence that was given to Mr Recorder Williams which he says is evidence that would support a finding of alienation, to which I will return. He developed his argument based on experience that he has acquired through his voluntary work with a charitable organisation, Families Need Fathers and he said this at B10:

"I have been on a lot of seminars discussing parental alienation and the problems it causes for children as they grow up and the effects it has on the alienated parent. Sadly, that is what has happened in my case. It is a form of child abuse and now a recent psychologist with over 45 years working with children has said it is also a form of domestic abuse on the alienated parent."

32. He is highly critical of the work of all the professionals who have been concerned with the children:

(i) he told me that CAFCASS was a corrupt organisation;

(ii) he said their reports in the past were "all rubbish, they have not got a clue";

(iii) he has seen many of their reports in his voluntary work and suggested that, by the simple expediency of changing the names of the parties on the top of each, they are all the same;

(iv) he said that things that they had written about what the children had said were variously mis-recordings, a product of coaching and evidence of incompetence by CAFCASS workers who were not very good at their job;

(v) Mr Kawalek "had me building shapes and asking for the capital of Rome" and he suggested he only existed as a professional because CAFCASS employed "people like him". He said his report had nothing to do with his case. He was "dumbfounded at how anyone could take his report seriously";

(vi) the guardian's report, like the previous reports filed by officers of CAFCASS was a "disgrace". She was:

"Not an expert, she is a not very good ex-CAFCASS worker who was not a proper person to do this case which has been too hard for her and is well above what she has been trained for",

adding that she had not been professional enough to find out that B had been alienated as well as she having been "hoodwinked" by the mother.

33. Accordingly he urged the court to encourage the mother to sit down with him and together they would devise a plan that would take B out of what is an abusive situation. A change of residence reflected in the order needed to be on the table for the court to consider if the mother did not cooperate. He wanted there to be an expectation that she would reintroduce him into B's life and, with the right encouragement, he did not think that B would refuse.
34. Failing that approach he advocated the use of a psychologist, Dr Sue Whitcombe, who has written and practised in the area of child alienation and whose opinion he would respect, unlike those of the experts that have thus far been involved whom he regards as having had no training or qualification in respect of alienation. Therefore to assist B, him and the court, he urged consideration for such a report to be directed.
35. He drew my attention to a paper by Francesca Wiley QC, written in 2016 as to the approach of the court regarding alienation, which paper the court has read, as well as a recent warning by the chief executive officer of CAFCASS, Mr Douglas, of the risk of alienation which he suggests is a belated sign of CAFCASS waking up to what is a serious form of parental abuse of children.

The Mother

36. By contrast the mother denies she has alienated either boy. Acknowledging a very difficult history of separation and divorce she said it was the father's inability to prioritise the needs of the children over his own views and how unfairly she has treated him as well as his anger towards her. Indeed, it is her belief that the father uses litigation as a weapon against her. Both boys, but specifically B, have repeatedly and consistently said that they do not want to have contact, which she attributes to his behaviour, including failing to prioritise them, leaving them during their contact, quizzing them about her and her life and then denigrating her and her now husband.
37. She said that although B was spared the greater part of this behaviour by reason of being so relatively young, A was not. She pointed out that B looks up to his much older brother, who she said is very protective of B and who is angry at how his father has behaved. So, to an extent, B has taken his cue from A. She said that the father's lack of empathy and insight as to the impact of his behaviour is key to why no progress has been made. His interfering with his own parents' contact brought it to an end, very much to her regret. His anger at her has not in any way abated with time and absent that she is sceptical that progress can be made.
38. Of the father's specific proposals:

(i) She said nothing that she would propose would be accepted by him and, even if it were, it would not be good enough. In any event, the animosity that he has shown, which she finds intimidating, has taken it to a point beyond repair. "He would have to give me a reason to think he had changed";

(ii) She is wholly opposed to the idea of B being questioned again by what would be the fourth professional. She described such a prospect as: "Awful, horrific. He is such a sensitive kid, he cannot deal with it". Hence, whereas the father regards the withdrawal of his application as being the actions of a "deadbeat dad" she thinks B would be relieved and would move on and, were things to settle down, she said: "Who knows? He could be going to the match with his dad in a few months, like his friends whose parents are also divorced."

The Children's Guardian

39. Very simply CG2 has found no evidence of alienation. She believes that she has ascertained B's wishes and feelings. She considers that further attempts to force contact would be counterproductive and potentially harmful. Recognising it is a big ask, she nevertheless urges the father to respect B's position and convey to him the fact that he has heard his voice by withdrawing in the hope that in time and away from the pressure of lengthy litigation B will find his own way back to his father.

Assessment of the Parents

40. I, of course, approach the evidence of each parent with an appropriate degree of caution and allowance. Each makes serious allegations. This is a very stressful situation for each and not relieved by the fact that it has been a fact of life since 2009. I remind myself of what Lady Justice Macur said in Re: M [2013] EWCA Civ 1147, one of the cases referred to in the paper by Miss Wiley, which is relevant here, not just for its concise statement of the importance of children having relationships with absent parents and the role of the court in promoting such, but also for the allowance the court must make in respect of the evidence of the parents in court giving it in such an emotionally charged situation. I, of course, take that into account.
41. I should say at the outset that as a litigant in person the father has conducted himself with great courtesy. He is articulate and able to convey his views clearly. With a few exceptions he was able to be diverted from subjects that were unlikely to be helpful. He was generally realistic in recognising that we are where we are and the fact that the history cannot be rewritten. His sincerity, belief and views was not, in the court's judgment, in doubt and, whilst his motives have been questioned, the court does not for a moment doubt that he wants to have a relationship with B, indeed both of his sons, and the court is equally sure that the absence of this is not just a source of enduring sadness to him but has, in many ways, become the defining part of this period of his life, devoting himself, as he told the court, to the charity to which I have referred, promoting relationships with absent fathers, apparently regularly attending this and other courts in the area to assist fathers in a similar position, or those whom he believes to be in a similar position.
42. I should say for the avoidance of doubt that to the best of my knowledge I have not previously encountered F in that or any other capacity.
43. There were flashes of frustration. His attack on counsel for "trying to dig up the past, they were doing a job and I understand why they had to do it," was uncalled for and unhelpful but that can, in the court's judgment, be put into the category of matters that Lady Justice Macur was alluding to in not paying excessive attention and judging solely on the performance in court in this highly charged atmosphere.
44. What the father also conveyed was his sense of absolute rectitude in his position. That was perhaps ultimately illustrated by his being asked to consider what he will do if this court does not find that B or A have been alienated. So certain is he that they have been, the court will inevitably in those circumstances be wrong having been misled by unqualified professionals whose perceived shortcomings I have already listed. Indeed, although those shortcomings were repeated at regular intervals in his cross-examination of the guardian, in his evidence and in closing those criticisms cannot, in the court's judgment, be dismissed as frustrated flourishes in the way that his attack on counsel was. They were the absolute answer to any point made by any of those professionals with which he disagreed.
45. Not only was each professional dismissed out of hand in that way, but there was a similar stone cold certainty that he was not to blame for anything. The only person at fault here is the mother and, of course, if she has alienated the children that could be entirely consistent. But it is rare in relationship breakdowns for there only to be one person to blame. Whilst it is neither appropriate nor necessary to go back to the point of breakdown, I have not investigated it evidentially and no one has argued it, what the father called the "backbone" of this dispute was looked at and I do propose to make some findings.
46. Another not unrelated feature of the father's evidence was his response to what the boys have said and done, all of which he rejects where it may be perceived as unfavourable to him by maintaining that they are either speaking from "false memory" or speaking through the voice of the alienated child. In other words, it is not their true voice or their true wishes and feelings and therefore what they say, where it is unfavourable, can be dismissed as having any evidential value at all other than as proof of alienation.
47. This approach meant that it was very difficult to consider alternative scenarios with him as counsel tried to explore because, from his point of view, there is one blindingly obvious narrative that, through ignorance or incompetence, or a combination of the two, no one else can see. It leads to a style of debate that is difficult to progress, as counsel discovered, in seeking to cross-examine him. Of course, if he is correct he is entitled to be angry, although his claim that he is not angry now was an assertion that the court found difficult to accept.
48. The mother had the advantage of representation and was not the subject of hostile cross-examination. I therefore had less opportunity to hear directly from her, albeit I was able to observe her during all of the hearing, including the significant periods when the father was speaking. I found her to be quite calm. There was about her a sense of weary resignation that she and, above all, B were going through this again. She said: "I think it is sad, terrible, awful, that they don't have a relationship. All I wanted was [F] to be a dad. I didn't want all of this."
49. She obviously disputes the father's narrative but also pointed out, for example, that she got on really well with his parents, "I think the world of them." But even trying to build bridges there resulted in the father's interference, for example, complaining that his parents could not travel for contact, that she was only using them as child minders and so on. She said that, but for his interference, it would have been easy for the children to have a relationship with them. Indeed, she said that his own father, the paternal grandfather, had said "[F] is not going to leave us alone", a remark that she suggested was borne out by the history. In observing that A "adored" his dad and was "massively let down" she said that she did not see in B the anger that A had and she maintained a belief that B will settle down and, for example, make contact with his grandparents if he feels able to do so, free from the concern that somehow it will inform litigation with his father.
50. Of course, what the mother said could all be part of an act. The court is highly conscious of the need not to be hoodwinked and to view this evidence sceptically. The mother may be a very good actor but the court has heard from many parents who have gone out of their way to prevent children from having a relationship with an absent parent and there was, the court found, an openness and naturalness about her which did not appear to be either forced or synthetic. There was a warmth and emotion in both what she said and how she said it that was striking and therefore would point to dissemblance of considerable sophistication if it was not genuine.

The Breakdown of Direct Contact

51. Without going into the very old history, the events of 5^th February 2011 plainly occupy an enormous place in the father's mind and in his case. Since it was the precipitating event to bring contact to an end it is important, as it is relevant not just to what happened as to the responses it provoked.
52. To set the scene, at the time the children had overnight contact for 24 hours a week from after school on Friday till 5pm on Saturday. A source of contention had been that the children were sometimes returned home early on the Saturday so that the father could go and watch the football. He explained that he, throughout this time, retained his own single season ticket at St James Park so that in due course he might get the chance of a second one next to his seat to be able to take one of the boys with him. The fact that he returned the children early on occasion seems to have been a source of irritation as well as adverse comment that it did not appear to be the actions of a father prioritising contact.
53. On this particular Saturday he said he did not go to the match but A, having returned to his home at 2.30 pm from playing football himself, F said that he "nipped out" to the pub to drop off his ticket for a friend who would use it as the alternative was that he would return the children early and he was not going to do that because of the criticism to which I have just referred. Thus, he said, he drove to the pub, he quickly gave his friend the ticket and saw another friend there, "watched the first 15 minutes of a match, saw Newcastle being beaten 4-0 and so went home". He said that when he got home, A had been on his X-Box. It was not against the law to leave A at the age of 13 and they were left in the house for an hour playing happily. He was insistent he had done nothing inappropriate.
54. Mother by contrast described how the children had come home at 5 pm upset and distressed, saying they had been left. She regarded what she was told had happened as being inappropriate and, for her, the final straw against the long history of issues, a decision that she communicated to her solicitor, who in turn emailed father's solicitor on 10^th February and that resulted in the father's application, very quickly followed by the mother's cross-application.
55. The children's accounts emerged via FCA and then later CG1. They each reported to the professionals that their father had gone to the match. FCA in June 2011 said:

"A talked about the time when his dad went to the match and left him with B in the house alone. He said his neighbour told him that the neighbour was keeping an eye on them."

B said something similar except that it transpired that the neighbour was not available to keep an eye on them at all because she was ill and her husband was out with his son.

56. The father rather angrily dismissed the idea that he had gone to the match, asking: "How was I meant to get to St James' Park from Killingworth for 3pm kick off?" not going on, however, to explain how his friend at 2.30 pm would have been able to get there either. From my own local knowledge, the shortest route by car is six and a half miles and it takes 20 minutes by car, not taking into account parking and walking to the stadium.
57. Mr Cahill took the father to the witness statement he made in 2011 where he wrote of this seminal event:

"I did not attend the Newcastle match. I therefore do not understand why A would tell his mother that I had gone to the football match and left him and B at home alone. I did go out shopping for about an hour. The children were left in the care of my neighbour, Z. I recall that Z's wife was unwell and therefore she was not the one supervising the children."

It was pointed out to him that in that statement there was no reference to him going to meet the friend at the pub, to the handing over of the ticket, or watching the first four goals. He could not provide an explanation for that but did say that he had also gone shopping as well as going to the pub as he described.

58. I have struggled with this history of an event that has assumed such importance to the father. Adamant that he did nothing wrong he says that the mother is wholly to blame for breaking the contact order thereafter. Indeed, he said: "It is not in doubt that is where the blame is. I don't accept any responsibility at all for blame." That certainty, already commented on, brooks no argument and no acknowledgement that he did anything wrong.
59. That is as relevant to the accuracy of what are, on the face of it, two different accounts as it is to empathy and insight. Mr Kawalek when he was preparing his report interviewed the father about the incident as well, albeit much later than the witness statement on 1^st March 2012. What he recorded at B138 is this. Having mentioned a problem over a telephone number he said:

"This became a problem when he had a ticket for a Newcastle match but could not get tickets for the boys. He arranged to sell the ticket to someone and agreed to meet him at a pub. [F] said he left the children at home. A was then 13 years old. He had a drink with this person and then watched the first half of the match on the pub television. A watched the match on television at home. [F] said that when he came back after the first half and A asked if he had been to the match [F] said to A that he had done so in order to prevent A thinking that it was the boys' presence that had prevented him going to the match. Thus when A asked him if he had been to the match he replied that he had."

60. That account is, in the court's judgment, far more likely to be closer to the truth, but it points to a significant period of absence. First of all, for the ticket to be of any use to the person who bought it from him they had to have had it in enough time to get to St James Park, raising doubt as to whether he left home as early as 2.30 pm for a three o'clock kick off. Secondly, in saying to me that he stayed for 15 minutes and saw that they were 4-0 down ignores the fact that the fourth goal, Van Persie's second, came at 27 minutes. If he stayed in the pub until half time he did not leave until 3.45, meaning that he must have been out for at least an hour and a half. Passing over his then account that A was watching the match on television, his account to Mr Kawalek suggests that he lied to A for the motive that he there gave, raising the further question as to why in his witness statement he questioned why A would tell his mother that he had gone to the match. That is, on father's account to Mr Kawalek, exactly what he told A.
61. This is therefore an incident of considerable significance and in the court's judgment the father's account has been one of minimisation, denial and, frankly, unjustified righteous indignation. To seek to attribute all the blame to the mother and to accept none himself is not the response of the contrite parent who, frankly, has put himself before his children. In seeking to justify it by emphasising the importance of maintaining his season ticket for a longer term advantage to the boys that is a neat but disingenuous deflection of any blame from himself, which is not just unfair but worrying. I will return to this.
62. There were other examples which I will not explore in detail, but they included:

(i) An altercation between the father and the maternal grandfather at a sports day, albeit that was wrongly recorded by the guardian as a football match; and

(ii) A's account of him turning up to watch A play football and "tormenting his mam and Davy", being his step-father.

The father's account was one in each case of acceptance that there had been incidents but what the boys described were false memories that they could not have known. Instead they had been poisoned by their mother.

63. The father cited the four reasons that I have mentioned for supporting his belief that the children had been alienated. I have mentioned each of those incidents of alleged false memory but he also relies on two interlinked points, B writing a letter aged 7 calling him by his forename and A changing his name by deed poll. I do not have B's letter when he was 7, nor had the children's guardian seen it. She readily accepted that if B had done just that she would have been very concerned but, as CG2 pointed out, that was seven years ago and she was not involved then.
64. A likely explanation is to be found in the report of CG1 at F100. She too was concerned to find that B had written such a letter, which she noted to be a deterioration in B's position and was explained by B saying by then in 2011 that he now knew things that he had not known previously and that he "did not want to go through what A went through". B denied that his mother had discussed with him the question of contact. That was therefore left hanging in the air, not adjudicated upon then as a finding and is, frankly, impossible to resolve now. However, it seems to the court at least likely that this referral to him by his first name has come from A as from his mother who denied any responsibility.
65. The father showed me A's very short letter from 2016 in which he told his father that he had changed his name and that he did not want him to contact him at all. His strength of view can thereby be determined, but such a view can arise other than by alienation and in considering what might be the cause it is helpful to look at what the children were saying at the time.
66. The father prays in aid, and understandably so, the fact that in June 2011 A told FCA that being at his dad's house was "good fun", B96, and then later CG1 in December 2012 that he could be "a mint dad", B154. B in June 2011 was also wholly positive, saying it was "nice seeing dad". He enjoyed being with him, nothing that F had done made him sad. Indeed, he said that he was upset when he returned from contact because he missed his father. The father asks reasonably, rhetorically and having quoted those passages on several occasions, what has happened to bring about this refusal to see him if it is not alienation?
67. Before considering professional evidence, however, it is important to look at each of the quoted passages in context because what F misses out, in his reliance on them, is the qualification the boys put on their responses. In 2011 A was 13, described as "extremely astute" by FCA. He qualified the good fun that he referred to thus:

"A said he would get nervous when it was time to go home as he was worried dad would start an argument. He said: 'Dad does stupid things.' When I asked what those things were he said not bringing them back at the right time, telling them to ring mam and ask to stay longer, swear and shout at mam, try and annoy [step father], say things like you're not his dad, you shouldn't be looking after him and calling him names like Shrek. A talked about his dad going to football matches and he said this upset him. He said he would like to go to the match with his dad, or his dad miss the match and spend time with him."

A little further: "A said that B gets upset when his dad won't let them talk about Davy and mam. A said that he does not talk about them as he knows it upsets dad."

68. B then aged 8 did not qualify what he said and it is not surprising that when CG1 reported in 2012 that she noted that A and B had had very different experiences at contact with their father by reason of the difference in their ages. She, however, also highlighted A's qualifications to her. Having described the good things, the "mint" dad, A added this:

"All of that stopped and he just asked questions all the time about mum."

The guardian goes on to describe a number of incidents which had clearly upset him:

(i) When contact took place A said B would be allowed out to play straight away but he would have to answer questions about his mother before he could go out;

(ii) At the end of contact his dad would keep B in the car and he would have to go to the front door to make sure his mother was in. B describes walking up to the front door saying over and over in his head please be in because he was worried about his father causing an argument;

(iii) A recalled on lots of occasions his father leaving ten minutes later than he should just to make mum worry;

(iv) A told the guardian he thought it would be good if he would be "a proper dad" and did not spend all of his time "hating mum", but he did not think that this would change.

69. CG1 continued:

"Throughout my contact with A his views have not changed. He has agreed with me that people can change, but he has said that he does not believe that his father wants to change or thinks that he has done anything wrong."

She went on, as I say, to express the view that A had been significantly affected by this dispute and identified the father as the source of argument and lacked confidence that this would change in the future. CG1 was, as has already bene observed, concerned by the change in B's attitude which, despite his different experiences, she attributed to his closeness to A which in part fed into her conclusion that F was unable to prioritise the needs of the children over his own view that he had been treated unfairly.

Do these factors, along with the failure of the boys to respond to indirect contact, point to alienation?

The evidence of CG2

70. CG2 was appropriately cautious in her approach emphasising that, whilst she could not rule out alienation, she had seen no evidence of it and it was unlikely in her view given what she did find.
71. Before I consider her evidence I need to address F's criticism of her lack of qualification to identify alienation. It is true that the psychological concept of parental alienation syndrome has been controversial and not universally accepted by psychologists and courts have been cautious over the years in their use of language that would suggest it has amounted to a psychological syndrome. What the court does not accept is that it, or family court advisors, children's guardians or other professionals concerned with the welfare of children of separated parents, is not familiar with the concept that abusive parents can and do alienate children from their absent parent.
72. The whole basis of the judgment in Re C was the jurisprudence that underlines the concept that welfare of children demands a relationship with an absent parent absent cogent reasons for not promoting it: that embraces a wide range of reasons that are regularly advanced for not permitting such a relationship that the court can and must investigate. This court has considerable experience of such cases, has seen many that, sadly, have passed from the private law arena to the public law forum and has resulted in public law orders being made, including taking children into foster care to remove them from an abusive parent until such time as they can move to a non abusive parent. In considering such cases the court is always helped by professionals. Where alienation is possible, almost invariably, a children's guardian is appointed because of the intractable nature of the dispute, the implacable opposition of the residential parent and the necessity for the child's interests – including but not limited to hearing their voice – to be represented independently of both parents.
73. CG2, whose experience I have already mentioned, is such a professional. She emphasised that, working with NYAS, in almost all the cases she considers, quite apart from her work in the past with CAFCASS and a local authority, she has undergone a great deal of training albeit had never been on a course dedicated to "parental alienation syndrome". Whether that disqualifies her is something to which I will return but I accept that she has a great deal of experience of this particular pernicious form of child abuse.
74. In saying that she saw no evidence of alienation in B's case she gave four reasons:

(i) she had been given completely free access to B (and A) by M. There had been no attempt to restrict that access in any way by, for example, placing terms and conditions around it. There was no influencing of dates, times or venues. She actually received the boys' mobile telephone numbers so they could text her and make their own arrangements to meet her directly. As a consequence she had done just that and had taken B out for a drink and a chat, enabling them to meet in the most natural surroundings, away from M, as possible. That contrasted with her experience of alienated children with whom she has struggled to communicate directly at all;

(ii) Mother did not to her convey an attitude whereby she was seeking to denigrate the father. There was none of the usual attitude, face pulling, negativity, nothing done to influence either boy. Her experience was of parents who seek to try to counter or pre-empt arguments by the production of reams of documentation. There had been none of that. The mother had simply presented as resigned to the court having to look at it all again;

(iii) Having thus had this unrestricted access to B, he did not present as an alienated child. There was no anxiety around him meeting her. He had no parent to look to before answering questions and he did not even do that when he was with A, who was present at the first meeting at B's request. He gave no sense of needing or seeking permission of somebody else to speak;

(iii) Even now, as with FCA and then CG1, B is able to recount positive things about his father and the contact he had with him. She said he presented as quiet but thoughtful, relaxed and chatty. His demeanour did change when the subject of his father was raised. Nevertheless he was able to describe some happy memories of his younger childhood, but he also recalled disagreements and animosity that existed between his parents and extended family members and what is now his anger is extended to the continued litigation as well as a letter that the father sent to A to which I will come.

75. It was the guardian's experience that alienated children do not have the balance that B demonstrated. Rather, they recount the history in black or white terms, with no positive memories of the absent parent at all, even when presented with clear evidence to the contrary. B wants a relationship with his paternal grandparents but is very clear that this should not be seen by his father as a device to facilitate re-involvement in his life. So the alienation that is suggested does not extend to paternal family members. Accordingly the guardian is clear in her view that, however hard it is for the father, and she acknowledged it to be so, he needs to back off and give B the time and space to move forward.
76. As recently as the day before the hearing, and little more than six months after she had completed her report, she had seen B again. He was very polite but firm that his views had not changed. He does not want direct contact and he wants the litigation to end. It was her professional view that after so long, so much litigation, so much professional involvement, to pursue matters further was likely to make B more, not less, reticent, his complaint being that he is not being listened to. As she said in answer to what the father later described as the "deadbeat dad" approach:

"Sometimes when you push hard you push them away. Given their age and how long it has lasted, they feel they are being harassed by the proceedings."

In that context she added that it is stigmatising for a 14-year-old being in court all the time and your friends are not. B quite simply is not prepared to work with a psychologist or anybody else at the present time.

Discussion

77. Why, against this evidence, does the father maintain with granite like certainty that B has been alienated? In this context it is worth looking at some of the other evidence that the court has received. Although he was dismissive of it, the court cannot so readily dismiss the very detailed psychological assessment by Mr Kawalek. Although father could only remember making shapes and being asked for the capital of Rome there are Mr Kawalek's notes of what would appear to be two lengthy interviews with the father which show the very wide ranging nature of the enquiry, quite apart from the psychometric and personality evaluation of each parent.
78. I mentioned the executive summary in recounting the history at the beginning of this judgment. Some of his observations are pertinent to the approach that this court has seen. So, for example, at B111: "[F] conveyed controlled anger." Most of this was directed at "the system", a reference to the legal system and the mother's solicitor:

"[F] seems to have a broad focus for his frustration and anger without fully recognising his own contributions to the present position. He sees himself as an innocent party who stands amongst a vast number of other fathers who have not received justice."

79. Parenthetically, the court noted that the father told Mr Kawalek that he had had differences with his own parents about the approach to be adopted and, had he followed his father's advice, he would not now be struggling to have this contact, a comment that chimed with the evidence that the mother gave.
80. Crediting that A and B probably were distressed when they were left alone on 5^th February because, however much it might have been a feature of the father's own childhood to be left alone, Mr Kawalek observed that it was a feature outside their experience of having been parented. He observed also that they would possibly suppress their feelings in favour of his expectations. It was noteworthy that in answering the episode of 5^th February in this hearing that the father simply dismissed the boys' distress saying there was only the mother's word for it, the implication being that that was word of no value.
81. Reverting to Mr Kawalek, accepting that the father may have felt that the children were "fine" when he left them alone, he said it nevertheless pointed to serious concerns. First of all, in relation to standards of care and supervision, the point already made, whilst F may have been brought up in a culture leaving children alone for long periods, attitudes have changed. Whilst the law does not legislate on specific ages the children's respective capacities and emotional wellbeing need to have been taken into account in making the decision to leave them alone.
82. The second point was the minimisation of others' concerns in which F strongly asserted that leaving the children was acceptable. Mr Kawalek said this raises:

"added concern in that [F] may not be adequately open to guidance, correction on this matter and other issues in which standards of care and supervision are questioned. It is claimed that the correct response to his admitted omissions would have been in each case an adult conversation. He is to some extent correct, but unlikely to adequately protect the children in future circumstances whilst he is continuing to minimise others' specific and broader concerns."

83. His fourth point was the prioritisation of a football match over being with the children. Mr Kawalek notes that at least one of the incidents had taken place when he was only seeing them from Friday to Saturday:

"It would have been extremely important for the children to during that time gain as much contact with their father as possible. It would appear that the boys were used to accepting their father's prioritisation to attending football matches, but in the circumstances of limited contact time the boys would have been better off with the feeling that their father preferred spending time with them over attendance at football matches."

He then goes on to identify the father's inflexibility at B114, his lack of empathy at B115 and on the same page a lack of attunement with his children's changing emotional needs.

84. In describing the father as appearing:

"to be locked into an interpretation which only sees his ex-wife as determined to prevent him from seeing the children, it is her fault and her manipulations which have caused the current state of affairs, he acknowledges minimal responsibility",

adding that other evidence suggests that he has far greater responsibility than he is willing to accept.

85. Furthermore, describing strong motivation by reason of anger, a degree of self-deception, viewing others as collusive and conspiratorial, he could:

"frame himself as a victim who wants justice, driven by anger towards the mother, yet with a relatively low prioritisation to spend well attuned, nurturing time with his children."

86. Noting the danger that this anger had caused, resulting in the children being exposed to very damaging triangulated relationships in which, for example, the father had written in the homework book of one of the boys inappropriately, he could not support direct contact.
87. What Mr Kawalek did do was set out a template for progress from B119 onwards and it includes:

(i) Placing his preoccupied occasions entirely aside;

(ii) Prioritising the needs of the children over his own needs, including distractions in contact;

(iii) Setting aside the negative feelings for the mother, step-father, maternal grandparents;

(iv) Enabling the children to feel supported in their expressed preferences and opinions; and

(v) Ensuring that they are protected from harm.

There were other recommendations, one of which was to ensure that his anger towards the mother was not shown to the boys in communications or in their presence.

88. Without exception these features, in the court's judgment, have all been evidenced in the case before it. The minimisation of his role on 5^th February 2011 and the blame placed on the mother is nowhere better summarised by F when of this seminal incident he said:

"We had a little disagreement on something and she stopped contact."

89. I need mention one more piece of evidence that the court has had to consider. When A wrote to his father to explain that he had changed his name it resulted in two letters to A from his father. I have been shown the second one, which is in the bundle. I am not going to read it out. It runs to a side and a half of typed single spaced A4. Expressing his upset at A's decision, which was entirely understandable, it goes on at length to explain that he is not angry with A because A's action is that of an alienated person who is suffering from parental alienation syndrome and he, A, is a victim of the most severe kind of emotional abuse deliberately and maliciously carried out. It goes on to warn A that, when the realisation dawns as to what has happened to him, he will have a lifetime of guilt to suffer. He also points out that he uses the letter that A wrote to show to other fathers, judges and social workers as a warning to prevent others from being abused as A's mother has abused him. He also adds that it will assist him in obtaining compensation from CAFCASS as well as being able to see B.
90. Asked about A's response, the mother and the guardian confirmed that he was angry, "patronising", the word this now undergraduate used himself. Not just that, so is B, who A showed, or at least spoke to him about, the letter. Asked about the wisdom of sending the letter the father's response was defiant:

"He is 18. He is a man and he had told me he did not want to see me."

He went on:

"I am quite entitled to tell him he has been alienated."

He went on to say that he did not think that it was:

"a bad letter. It just says I think your mam has alienated you against us. It was appropriate. I have studied alienation for five years and know a lot about it."

Remarkably, it seemed to the court, it did not occur to him that he might show the letter or al least talk to B about it. Of course, and he stressed this, the application is for B and not for A, "I am making this application to stop B going the same way." which is not, in the court's judgment, a sufficient justification for what he did with such little thought.

91. There were other matters that emerged but I think I have covered sufficient ground for the court to accept with really no qualification the guardian's view that the father has not moved on at all since 2012 when Mr Kawalek reported. Each of the factors I have highlighted are present and the letter is in many ways the final straw:

(i) it has the effect of dragging A directly back into the dispute, seemingly without any insight as to the effect that it might have on B in the context of a contact application;

(ii) it blames the mother in direct terms for having so grievously abused him;

(iii) it fails to recognise that he might have done anything wrong himself; and

(iv) it fails to have regard for any feelings that A might have. It points to a complete lack of empathy and insight.

92. In the court's judgment the father spoke the truth when he volunteered to Mrs Callaghan:

"The letter was important for me to get it off me chest."

In other words the letter was all about him: it was not about A at all.

93. There are other examples of which I will mention one. Complaining that he does not know what to send the boys by way of indirect contact and putting to one side the complaint the mother made that birthdays and Christmases were ignored for these purposes. He was asked, well, why not send them money and he answered variously:

(i) I would not know how to give it to them;

(ii) I believe mother would not give it to them.

It was pointed out that there are other secure methods of sending money and indeed post and ensuring that they are received. But then he countered by emphasising that he had been saving cash and shares, substantial sums he mentioned, £1,000 at Christmas was mentioned, and it was noted that he had mentioned money in the letter to A that he had been saving, noting that it was: "for your university years." A is now at university. He was asked: has A been offered anything?

"There has to be a little bit give from A."

There is, therefore, an agenda. The money is only there on terms, his terms and thus it is that at a time when any student would want and need money, the money is not in fact offered.

Conclusions

94. Having seen and heard the father and mother and having heard the guardian, I am quite satisfied that B and A are not alienated children. They are victims of an acrimonious separation in which I have no doubt that each parent played a part. When Mr Kawalek said that the boys' views may have been influenced by the adults with whom they regularly come into contact that is likely to be more a statement of the obvious than a suggestion that they have been alienated as the father suggested.
95. Whatever part the mother had in the historic dispute, which I have not sought to try save for the February 2011 incident where her response was an appropriate one on all the evidence, I am satisfied that she did not alienate either boy and that she has plainly moved on. Whilst both boys enjoyed their time with their father it is clear to this court that it was conditional enjoyment and that the father's behaviour and relentless negativity towards the mother, as well as the other things they reported, took its toll.
96. Father, by contrast, has not moved on. He is stuck in the same place that he was in 2011/2012 and sadly appears to lack any insight into the harm that he has thereby done, and continues to do, by writing a letter such as that to which I have referred. He is as utterly obsessed with placing the blame on the mother as he is resolute that he is a wholly innocent victim. Whilst denying that he wanted to play the blame game in his third position statement, in this very application, as he sought to challenge what the mother said, he could not restrain himself from writing

"I'm really sorry to wee on your cornflakes, M",

describing her comments as

"pathetic and utter rubbish",

and in his fourth position statement describes her being guilty of behaviour that

"was so cruel it beggars belief."

97. The court is satisfied that it is not being "hoodwinked". The mother's presentation corresponded with the profile that Mr Kawalek identified in 2012, rational, balanced and having the children's interests uppermost. She was warm and straightforward.
98. Nor has the court been misled or let down by professionals who, with considerable perception, FCA, CG1 and now CG2, and the psychologist, have identified very clearly what the issue is. Each has attempted at different stages to lay down a road map to progress. The Court of Appeal noted with regret that Mr Kawalek's suggestion that it may be necessary to do some psychological work with the boys to ascertain the basis upon which they are making their decisions had not been followed up. With the benefit of hindsight and certainly now, having heard the evidence at some length, I remain sceptical as to whether that would have been either appropriate or likely to have brought about a resolution that the father and, no doubt, it hoped might have transpired. But it is idle speculating now as to "what if?" because the court has to consider the "what now?", which is a very different question.
99. I have had very much in mind the example presented to the court by the father in Re: R, one of many cases where the Court of Appeal has felt that there remained stones left to be turned over. It is not difficult, I accept, to identify one that arguably has not because the Court of Appeal in 2015 by reference to the 2012 litigation and the father now says that there should be a psychological assessment of B and it would undoubtedly be easier to sanction that route than the alternative, not least because the father maintains that he would accept the outcome if his chosen expert is appointed even if it is bad from his point of view. But as the Court of Appeal stressed in Re: C and all the cases, this remains a welfare decision and B is at the heart of it because it is his welfare and not that of the father that is the court's paramount consideration.
100. I accept that the court has to approach wishes and feelings, even of a 14 year old boy, with a healthy degree of scepticism and I hope that the court has done so. I have not been asked to see B and to the best of my knowledge he has not asked to see me. Indeed, one of the striking things I learned was his response to CG2 contacting him to speak to him before this hearing. His reaction was one of surprise because he thought it was all over. That does not suggest a boy living in an environment where he is being subjected to behaviour designed to alienate him. His wishes and feelings have, however, been consistent since 2012 at least and, as I have found, I do not believe that he is alienated. I accept that he has adopted his older brother's responses and to an extent anger. A's own wishes and feelings were very much forged from his first hand experience perceived because of the age difference. Whether right or wrong, and having seen the father I think the former, B's response is an added dynamic missing from the cases mentioned because B inevitably has looked to both his mother and his brother and I am sure that he has taken cues from each of them, meaning that this is not the classic case of a child caught between parents, it is two parents and a brother.
101. His day to day physical and educational needs have been very well met by all reports. He also appears to be very well adjusted despite the lack of the relationship with his father. I entirely accept the father's observation that a relationship with him is an important part of his emotional development and should be promoted if possible and safe. The evidence the court has heard suggested that it would be very difficult to achieve that for so long as the father holds the views expressed in his letter to A and remains wholly unrepentant as to their appropriateness. As far back as 2011 one of A's concerns was that B got upset when his father prevented him from talking about his mother or step-father. A never did because he knew it upset his father. B could not fail to have the same appreciation knowing what the father said to A in 2016. It was a fundamental part of Mr Kawalek's proposals for moving forward and therefore the risk is a real one of emotional harm from having that contact which falls to be balanced with the harm of not having it.
102. Any change in B's circumstances which is forced upon him will be profound and likely unwelcome. At 14 years 3 months, as near as makes no difference, he is likely rapidly to be approaching the moment of Gillick competence. Of course, children have to adapt to all manner of changes in their circumstances as part of growing up. There are younger children who can be forced into having contact with a "blameless" parent. B is very much at the upper end of the age spectrum. When the case was before the court in January 2014, in recognition of A being 15 years 8 months, the father did not pursue his application. B is just 17 months younger but the difference is not, in truth, so great. Furthermore, as I have found, the father's lack of empathy and insight do not, sadly, cast him in the role of the blameless parent.
103. B's age, sex and background are all relevant for much the same reason. He is not uninterested in his paternal background. He accepted with pleasure photographs in 2012 as CG1 reported. Likewise something prepared by the paternal grandfather about the paternal family history much more recently was received by A and B with real interest. The evidence from their mother, which I accept, is that B would very much like to have the freedom to have a relationship with his grandparents. This is not a blanket shutting out of the paternal family. It is very specific and in the court's judgment has to be afforded particular respect.
104. The guardian expresses the view that B has not suffered harm by virtue of this dispute. I am not sure that I agree with her there. This is not just a separated family but a dysfunctional separated family. Mr Kawalek said in his addendum at B147 that the impact had "probably already been extremely damaging and likely to continue to echo on through the boys' adult lives." CG1 felt that it was A who had been significantly affected, I agree, and hinted that B may have suffered as a consequence of his closeness to A. Again, I agree. Children model their own relationships on those adults who are, or who ought to be, the most important to them.
105. By his behaviour, both boys have been denied a good role model in their father and I fear that it will rebound in due course. To that extent I agree with him that the lack of the relationship is likely to rebound, but there is no hint that the harm that the court finds is likely to have come from the father will stop because of his being frozen in the place that Mr Kawalek found in 2012. So the risk of that harm remains first and foremost from that. Still further this litigation has been an endurance test of eight years' duration, more than half of B's chronological let alone sentient life. Given where B now is the harm of forcing him to submit to psychological assessment at this stage has to be balanced with the alternative.
106. However well or badly the mother managed things in the early years of separation and divorce I am quite satisfied that she has done so appropriately since 2011/2012. The response to the events of 5^th February was in the court's judgment appropriate, as all professionals acknowledge. Looking at the bigger picture the success of A, now at university, and B at school as well as in sporting achievements, points to the appropriate ability to bring up her boys safe and well and fulfilling whatever potential they have.
107. In contrast the father has failed in so many respects yet is wholly unable to accept any part in that. It is central to the lack of insight and empathy that continues up to the present time. Although he claims to have sent birthday cards mother reports that B got none. Instead he received two anonymous cards signed from "a friend of your dad", which added that he misses you and loves you. The father saw nothing wrong with that. He refused to identify the senders, who he said were persons sympathetic to his plight. He did not appear to have given any thought as to how a 13 year old boy might react to receiving cards from anonymous strangers bearing such a message when none was received from him himself.

"What is wrong with 'a friend of your dad's'?"

the father asked, adding:

"I think B would be happy to receive them."

108. Those are therefore the factors that fall to be balanced. It is not an easy exercise and I have performed it not just by reference to the welfare checklist and Article 8, but by the guidelines in Re: C. I am quite satisfied that whatever else may have been done at an earlier stage, the point has now been reached where the balance falls decisively in favour of refusing the father's application. There is a convergence of factors that dictates it, all of which I have mentioned: age, the dynamics that include A, the sheer duration of the litigation. But the decisive point, in the court's judgment, is the father's inability to see and acknowledge any role in what has gone wrong.
109. Even if one holds back from a finding that the father is doing it to get at the mother, and there are factors that would clearly support such a finding, along with the striking lack of emotion at the loss of the relationship with his boys, there is overwhelming evidence that the father is unable or unwilling to listen to or accept advice with which he may not agree. Mr Kawalek's blueprint in 2012 and the very thoughtful senior guardian's invitation to take a leap of faith and back off at that time, something his own father had seen and supported, were rejected out of hand as consigning him to the role of "deadbeat dad", professionals' opinions dismissed in the derogatory terms I outlined much earlier in this judgment.
110. Despite the complete lack of progress in the intervening period and the even more entrenched position of B and A, the father has no proposal beyond his insistence that the mother has alienated the children. He will not entertain any other narrative. Therefore, in the court's judgment, having rejected that narrative, any further attempt is doomed to failure because the father, let alone B, is not in a place where it might work. If he had been, it might have been a risk worth considering. He is not, so it is not.
111. The father's proposal to sit down with mother and for him to have a discussion with hanging over her the threat of a change of residence is, frankly, completely unrealistic. Having seen what the father has written about the mother, already quoted from his statement filed in this case and the letter to A, it would be a meeting doomed to fail. Just how could the author of the abuse that he perceives possibly sit down and have such a discussion with him? It is inconceivable that B can be moved on at this junction to a father whom he has not seen for more than six years. The alternative would be to foster care in circumstances which would be utterly bewildering for him, quite apart from the lack of evidence that his needs are not being met.
112. Nor is the court persuaded that a fresh attempt at assessment by a fourth professional could possibly be justified in the light of the conclusions that have been reached. The problem is not, in the court's judgment, with B: rather, it is with his father. So, of course, a hope that contact can be maintained by appropriate indirect contact along the lines that were suggested by the guardian and by the reintroduction to the paternal grandparents in circumstances that would give B the confidence that this was not a kind of experiment to reintroduce him to his father against his will, should all be nurtured with both parents playing a positive role.
113. This is therefore not a case where there should be an order for direct contact. It remains a case where there should be no order in respect of direct contact and so insofar as the court is asked by the father to order direct contact it declines to do so and hopes that it explains its position sufficiently clearly to all the parties, but especially the father, as to how that has come to pass.

Section 91(14)

114. That suffices to dispose of the father's application. The mother does not pursue her application in the circumstances to set aside the order for indirect contact and rightly so. She does, however, ask the court to make an order under section 91(14) preventing the father from making any further application regarding B without leave of the court before his sixteenth birthday on 10^th February 2019.
115. It is, as I have said, an application supported by the guardian. It is opposed by the father. I am indebted to Mr Cahill for concisely summarising the law in his skeleton argument from the leading case of Re: P [1999] 2 FLR 573 as set out by Lady Justice Butler-Sloss as she then was:

(i) The section should be read in conjunction with section one, which makes the welfare of the child the paramount consideration;

(ii) The power to restrict applications is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances;

(iii) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and be heard;

(iv) The power is therefore to be used with great care and sparingly. It is the exception, not the rule;

(v) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications;

(vi) In suitable circumstances and with clear evidence a court may impose the leave restriction in cases where the welfare of the child requires it although there is no past history of making unreasonable applications;

(vii) In cases under paragraph (vi) the court will need to be satisfied that the facts go beyond the commonly encountered need for time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute; and

(viii) There is a serious risk that the imposition of the restriction the child or the primary carers would be subject to unacceptable strain;

(ix) The court may impose a restriction on making applications in the absence of a request from any of the parties subject to the rules of natural justice, such as an opportunity for the parties to be heard;

(x) The restriction may be imposed with or without limitation of time;

(xi) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify where appropriate the type of application to be restrained and the duration of the order.

I need not deal with the twelfth point which concerns ex parte applications.

116. This is a case where there have been no fewer than six applications. Without enumerating each and every one, the salient points are as follows:

(i) The 2011 litigation concluded on 19^th December 2012 with an order for indirect contact only. Within less than two months, on 12^th February 2013, the father had made a fresh application for direct contact;

(ii) That application was dismissed on 16^th August 2013. Within three months, on 11^th November 2013, the father issued a further application for direct contact;

(iii) That application was resolved on 4^th July 2014. Four days later the father issued a further application to enforce indirect contact;

(iv) That application was ultimately resolved by the Court of Appeal on 1^st December 2015 when the father's appeal was dismissed. This application was issued on 30^th December 2015, less than a month later.

117. In his evidence the father having hedged with saying that he would have to consider the position after the judgment but ultimately, citing all the mistakes that he said had been made, suggested that if the judge disagreed with him and if abuse, in other words alienation, was continuing, he would take steps to prevent it. Insisting that the only course open to him was to litigate, it is the court's judgment that this is exactly what he would do again. The history is one of pursuing anything or anyone with whom he disagrees. Since he only has one narrative, history will almost inevitable repeat itself. The father did say that given B's age there may not be other opportunities, but the evidence that the court has just alluded to was clearly at odds with that.
118. The court therefore has the guidance very clearly in mind in making this unusual welfare decision, including the findings it has made in consideration of the welfare checklist. It fully recognises that it is a useful weapon, but only of last resort, but finds that it is indeed a case of repeated and unreasonable applications, unreasonable because there is only one opinion the father will accept, and that is the one that coincides with his own. The court is quite satisfied that B, and his mother who cares for him, need such protection that such an order can provide. It is plainly a case that goes far beyond time for settling into a regime. The animosity the father shows towards the mother is strikingly marked eleven years after separation. The burden on B, mother and to an extent A has been considerable.
119. I accept the submissions of the mother and particularly the guardian that the circumstances here are exceptional and the criteria made out. An order does not, of course, prevent the father seeking leave of the court to litigate, but absent a sea change in attitude, whether in response to this ruling or other external factors leading to a shift in thinking, the court will be slow to grant leave for the very reason that this order is being made.
120. I am therefore satisfied that an order preventing any application under the Act in respect of B is necessary and I propose to make an order. Given the history, its duration and B's age now I am satisfied that the order should endure until his sixteenth birthday, 10^th February 2019.
121. I want to end simply with this. This is a desperately sad case. Whatever its early origins, whatever mistakes may have been made, whatever different courses might have been considered at other times and were not, is now water under the bridge. The court is concerned with the hearing now. The father's frustration may well have played its part in entrenching his wholly rigid way of thinking. But it is that very approach which is, in the court's judgment, inimical to the progress of contact in 2017. However hard it may seem to him, he has to have regard to what he has now created and I fear that, until he can move on to give B and A to rebuild relations with their paternal family in their own way, he will never achieve the outcome he seeks. I therefore wish B and A, as well as their mother, all the very best in the future.
122. So the order will be that the application for direct contact is refused and there will be a section 91(14) order.
[Judgment ends]