COVENTRY DISTRICT REGISTRY
B e f o r e :
sitting as a Deputy Judge of the High Court
(by his guardian ad litem, the National Youth Advocacy Service)
Miss Alison Ball QC and Mr Oliver Peirson for the First Respondent
Miss Hari Kaur (instructed by NYAS) for the Second Respondent
Crown Copyright ©
'In my judgment, there is today no rational or reasonable ground for believing that to persist with direct contact at this stage would be likely to lead to anything other than stubborn resistance and outward distress by S. So far as contact is concerned, if this case is to be disposed of today, then an order for indirect contact only would, I am satisfied, be the appropriate order. If I were to make such an order, then it is right to say that, for my part, in the light of my knowledge of this case, I have no real hope that such an order may in time lead on to direct contact. I have set out my detailed assessment of the mother in two judgments and in the light of that assessment I do not believe that once these proceedings are ended S's beliefs and attitudes are likely to change.'
Findings concerning the father
'141. Having listened to the father as he gave his evidence, he impressed me as a devoted father who is committed to his son. At times during his evidence he was quite tearful. He is clearly devastated at the breakdown of his relationship with S. He said, movingly, that this present situation isn't just S's tragedy or his tragedy but is a tragedy for S's siblings, his grandparents, his cousins, his aunts and uncles. He said that 'if ever we go out for a meal there is always an invisible guest there'.
'142. However, it is also clear that the father has great difficulty in foreseeing the consequences of his actions. For example, whilst I have no doubt that his decision to seek DNA tests was, as he says, intended to underline to the mother the fact that he is S's father, with all that that implies, I equally have no doubt that he gave no thought to whether that step might be perceived by the mother as a hostile step implying a slur on her character. In other words, he was unable to foresee that a step which he hoped would have positive consequences might in fact have very negative consequences. Similarly, his applications for permission to change S's name and for him to be educated in the independent sector, no doubt both worthy aspirations in his mind, were likely to have and did have a negative impact on his relationship with the mother. Given that contact was at last progressing reasonably well at the time he made those applications, it is unfortunate that the father did not have the foresight to contemplate the damage that might be caused by making those applications.
'143. The events of early January 2006 provide the most powerful testimony to the father's inability to foresee the consequences of his actions. Although the description of his conduct as being 'over-zealous' still rankles with him, I am satisfied that it is an apt description. The repercussions have been profound. Having over the years put so much effort into successfully establishing a meaningful relationship with his son, all of that good work was undermined by his over-zealous response to S's apparent disclosures. '144. That said, it would not in my judgment be either fair or appropriate to conclude that in terms of the complete and utter breakdown in the contact arrangements the father is wholly responsible.'
'170. ...So far as the father is concerned, I have already expressed the opinion that in terms of his ability to put himself in S's shoes, his ability to show empathy, he does not appear to have moved on. I do not for a moment doubt the sincerity of the father's desire to re-establish contact between himself and S. His motives are entirely honourable. However, it appears to me that the father's single-minded pursuit of that end is blind both to the risk of failure and to the potentially adverse impact on S of continuing the fight. I noted earlier the difficulty judges encounter in coming to the conclusion that the end of the road has been reached. This father has not even begun to consider the possibility that the end of the road is in view.'
Findings concerning the mother
'146. In January 2002 Judge Deeley expressed some very strong views about the mother's attitude towards contact. After that hearing there was considerable improvement. Alternate weekend staying contact and holiday contact (including holidays abroad) took place. It is clear that the mother did, as she says, take to heart the criticisms made by Judge Deeley. As I noted earlier, in January 2004 Judge Fisher formed a much more positive impression of the mother. I have taken time to reflect on the evidence before arriving at my own assessment of the mother. I am not able to be as positive as Judge Fisher. In a number of respects the evidence before me, including my own observation of the mother giving evidence during this hearing, leaves me with some concerns. '147. I have no doubt that the events of early January 2006 were traumatic for the mother. Not only the alleged disclosure but also the father's failure to return S to her care must have been very deeply upsetting. There had undoubtedly been some positive changes in the mother's underlying attitude to contact following the hearing in January 2002. I have no doubt that the events of early January 2006 put those changes into reverse.
'148. Although the mother says that she is open to contact resuming when S is ready, I am not wholly convinced that she means what she says. In some respects, her conduct and her past comments tell a different story. The following issues, in particular, lead me to that conclusion:
(a) The fact that the mother has now arranged for S to have extra-curricular activities every day of the week, including weekends, means that there is now no space in his life for contact — and therefore no space for his father. Even if S were more open to the possibility of contact, the impact of a reintroduction of contact would be likely to have some negative side effects in S's mind, given that he would have to reduce some of these activities.
(b) Ms J [S's first guardian ad litem] noted that the mother has 'significant influence and power' in S's life and thus expressed surprise that the mother 'has not been able to persuade S to even look at a letter from his father'. S said his mother had given him the choice whether he read the letter or not. As Ms J said 'Sometimes the "tough love" of a parent it not to give an 8 year old child a choice if we believe what we are doing is in their best interests.' The same point could be made in respect of S's failure to acknowledge presents received from members of the father's family and his unwillingness even to send a postcard to his half-brothers when on holiday.
(c) Similar concerns arise in the report of the present guardian. There is a difference between a parent allowing contact to happen and a parent encouraging contact to happen. Mrs K records that in a joint discussion with both the mother and S, the mother had said to S 'if you said you wanted to see him I'd have to go along with it'.
(d) The mother has engaged in therapy sessions and expresses a willingness to continue doing so. She engages in brief weekly telephone conversations with the father. Although at one level all of this is very positive, it could equally be construed less favourably as the mother accepting a level of inconvenience for herself as a price worth paying in order to maintain the present status quo of no contact. In this context it is appropriate to recall the note in the guardian's report that when discussing S's disclosure with the mother she had said that she would never have abused S in this way 'because she loves her son more than she hates RG'.
(e) There is the curiosity of the referrals made by S's GP firstly to Dr P and then to Dr N, apparently coinciding with the suggestion that they should be jointly instructed as expert witnesses in the case. As has been noted on behalf of the father, the effect of this was that Dr N was providing a report from the standpoint of a treating consultant rather than that of an independent medical expert coming fresh to the case. In the event, Dr N was not formally instructed in a medico-legal capacity until after she had recommended that contact cease and at a time when she had not spoken to the father or appraised herself of the long and complex history. The concerns about what I have described as a 'curiosity' become more acute when one considers both the rapidity with which the mother made e-mail contact with Dr W once she knew he was being proposed as a possible expert witness in the case, and the lack of candour in the content of that e-mail.
(f) The mother's decision to tell the CSA that she no longer wished to receive child support from the father is a matter I find particularly surprising. The amount being paid was not an insignificant sum — around £450 per month. It was being paid regularly. This father is not one of those feckless fathers often referred to by way of justification for the existence of the Child Support Agency. I cannot recall ever before, whether in practice or on the Bench, having come across a mother suddenly turning her back on child support that was being paid regularly and without demur. I regard the mother's excuse for discontinuing child support as being specious. Even since contact stopped, this father has at all times been willing to provide financial support for his child and yet the mother has shunned his contribution. '
149. Whereas I have found that some of the father's actions have been carried out without any insight at all into the likely consequences, I am in no doubt that this mother does have insight into the likely consequences of some of her actions. '150. In my judgment, when taken together, and in the context of the whole of the evidence before me, all of this strongly suggests that in truth this mother has no real wish to see contact restart.'
'172. ...there are a number of factors in the evidence that lead me to believe that the mother is still not as enthusiastic about reinstating contact as she would have me believe. I list just six of them:
(a) For three months after my earlier judgment, her continuing refusal to accept voluntary maintenance pending the making of a new CSA assessment.(b) Her response to S's behaviour when Dr W visited her home.(c) With respect to the planned encounter at the place of worship, her telephone call to Mrs K, rather than to the father, to discuss S's distress prior to this event; herdecision to invite the father to the place of worship notwithstanding her awareness of her own father's clear view that it was not the done thing for her and the father to be seen together at the place of worship.(d) With respect to the planned encounter at the cross country event, her failure to tell S's Head Teacher that she had invited the father to attend the cross-country race; her delay in telling S about this event; her decision to invite the father to this event notwithstanding her understanding of the importance of that event both for S and for the school; her attempt to discuss S's adverse reaction with Mrs K on the morning of the event; her failure to discuss his reaction with the father.(e) With respect to S's education, her rejection of the father's request that he should attend Parents Evening with her; her failure to consult the father about choice of secondary school; her general failure to recognise the significance of shared parental responsibility in matters relating to S's education.(f) With respect to indirect contact, her failure adequately to reprimand S for his rudeness to the father during telephone conversations and for his failure to acknowledge gifts received from his paternal family.
'173. Having said all of that, I do accept that the mother has made some progress since the last hearing. I do accept that she has tried, though I am not wholly convinced that her intent has been to commit to making contact work. It is equally possible that her efforts have been intended to persuade the court that she has tried her best to make contact work.'
Review of the NYAS caseworker's evidence
'121. .It is clear that S's presentation during [Mrs K's] second meeting with him had had a very profound impact on her. She herself recounted the detail of that meeting with considerable emotion. Later in her evidence she said
"I feel pretty ferocious in protecting S. Never have I come across such a strong sense of fighting for a child."
No-one who heard the guardian give her evidence could have been left in any doubt at all that she feels passionately about the welfare of this young boy.'
'118. Mrs K has prepared three reports since the date of my last judgment. The first is dated 21st March 2008 and was prepared in readiness for the hearing at which I was to determine whether Dr W should be given permission to assess S. I find two particular aspects of that report to be striking.
'119. Section 15 of that report is headed 'Guardian's reflections'. Mrs K says that she is 'mindful' of the judgment I handed down in December 2007. She then proceeds to highlight a number of passages from my judgment. It is noticeable that she refers to my comment that I had 'real concerns about both parents' and yet does not acknowledge [the] qualitative differences in the concerns I expressed about each parent. In contrast, Dr W acknowledged in his second report that 'The Findings make clear that the mother has long opposed and undermined contact between S and his father'. It was clear to me from her oral evidence that [Mrs K] did not really accept my assessment of the mother. She said that my findings have given a 'stronger judgment' on the mother's antipathy than she had referred to in her earlier report. However, it is also right to note that in answer to a question put to her by Miss Meyer, she said that 'one has to remain alert to the risk that the mother is just paying lip-service so far as change of attitude is concerned'.
'120. Later in that same section, when contrasting the different approaches of Dr W, on the one hand, and the two therapists on the other, having noted Dr W's 'enormous wealth of experience' she went on to observe that 'Ms W and Mr L also have an enormous depth of experience'. She makes no reference to the fact that they had both accepted that they had no experience of dealing with a complex intractable contact cases (sic) such as this, a point to which I referred at paragraph 168 of my judgment.'
Dr W's evidence on change of residence
'I would support a change of Residence if there was evidence that S suffered emotional harm and/or abuse as a result of care given by the mother. I would not regard the presence of "alienation" in S as sufficient to conclude that the mother caused emotional harm and/or abuse. There would have to be other Findings of a type which would normally lead "to removal from or supervision of contact with residential parents. Such parents' factors include severe clinical pathology in the residential parent, Munchausen's by Proxy, parental neglect and/or abuse. It also includes making repeated and unsubstantiated allegations of abuse about the rejected parent, emotionally abusive attempts to inculcate negative beliefs in the child and child abduction." That approach seems compatible with the Court's approach in the UK though the quotation comes from the United States.'
'I understand that the Court has not made Findings which could lead me to suggest that a change of Residence would, on balance, be in S's best interests. Therefore (questions (a) to (f) inclusive) I cannot recommend it as the way forward in this case.'
The father's proposals
(a) What is equally important is the findings that the Court has not made as these must be considered when balancing all factors of the welfare checklist by way of example. (sic)
(b) The court has not found that the mother is responsible (or solely responsible) for the alienation of S from his father.
(c) The court has not found that S suffers any disadvantage in any other areas of his life.
(d) The court has not found any exposure of S to distorted belief systems or false allegations from the mother.
(e) The court did not make its order for sibling contact based on any assertion by the mother, or assumption by the court, that this would lead on to contact between S and his father.
'.The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained in J v C  AC 668, 711, this means that it "rules upon or determines the course to be followed". There is no question of a parental right.'
Lord Kerr then goes on to say that
'37. This passage captures the central point of the In re G case and of this case. It is a message which should not require reaffirmation but, if and so far as it does, we would wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration.'
Welfare checklist analysis
'50. The father's account of this encounter is in one key respect rather different from the mother's account. The father says that whilst they were in the hall, 'when not observed by his maternal family, S smiled at me, appeared at one stage to try to wave at me (until his cousin turned around) he kept on exhibiting curiosity and glancing in my direction and then later he smiled and greeted my wife LH.' He says that S's face 'really lit up' when he saw him. He says that when they queued for tea S was immediately in front of him in the queue and yet showed no sign of anxiety or distress. There were no signs that S was trying to avoid him. LH confirmed the father's account.' I accepted the father's account.'
'It is also important for both parents and for all professionals working with the child to recognise that the child's expressed wishes and feelings are irrational and should form no part in the Court's decision making.'
'Nobody should dictate to children of this age, because one is dealing with their emotions, their lives and they are not packages to be moved around. They are people entitled to be treated with respect.'
I cannot and do not ignore S's expressed wishes and feelings. However, in the light of Dr W's evidence, it would be equally inappropriate for me to proceed on the basis that those expressed wishes and feelings should necessarily be taken at face value. They need to be assessed in the light of S's age and understanding. The impact of alienation upon the reliability of those wishes and feelings and the signs (albeit modest) that they may not in fact reflect his true feelings, are matters to be taken into account when assessing the weight to be attached to them.
'165. .include the need to be freed from this parental conflict and to be enabled to process and overcome his negative feelings towards his father. He also needs to be helped to come to terms with the fact that his father's DNA is in every cell of his body and of what that implies for his own self-identity'.
'It is likely that S would be temporarily distressed if removed from his mother's care. That distress would be greatly reduced if his mother was able to co-operate with the procedure and help in the transfer from one home to another. It would be reduced if there were reasonable arrangements for subsequent contact and if the mother was able to behave in a way which supported the change. She is an intelligent professional woman working in the area of human psychology. She should know what she has to do to help S, but I have no doubt she would benefit from support in dealing with her own feelings, and possibly to a lesser extent in knowing how to help S.
'There is an enormous research literature and plenty of professional experience concerning children removed or separated from one or both parents. The children affected usually adjust reasonably well, the more so if they are well adjusted, intelligent, not exposed to previous traumatic separations, are over 5 or 6 years of age, and have some familiarity with their new carers. If there were genuine parenting failures (such as emotional abuse) causing the need to move then the children usually develop far better than if they were not moved.
'In this case there is the very considerable advantage that S would move to a family with whom he has existing loving relationships.. .and a home with which he is familiar. In S's case the risk of ongoing distress or disturbance is very low.'
'11. In my judgment, it is clear that when I dealt with this case a year ago I found that S has been emotionally harmed. In my judgment, harm is normally the result of trauma and it is clear that I found that S had been subjected to trauma, the trauma arising from exposure to the mistrust and tension between his parents. I also found that both parents bear responsibility for that mistrust and tension. I found, too, that whereas in the Father's case that was the result of lack of insight and empathy.. .that in the Mother's case it was more wilful. As for which of these has played the greater part in causing the emotional harm identified, it is not, in my judgment, possible for me to say.'
'173. I do accept that the mother has made some progress since the last hearing. I do accept that she has tried, though I am not wholly convinced that her intent has been to commit to making contact work. It is equally possible that her efforts have been intended to persuade the court that she has tried her best to make contact work.'
'80. In the same way that attempts at telephone contact have been wholly unsuccessful, so too has been any attempt to communicate by exchange of presents and cards. S will not even send a thank-you note to acknowledge any gift received. The mother has been completely unable to persuade S to engage. It was put to her by Miss Ball that she had lost control of S. She agreed that she had.'
(1) The parents had separated before S was born. The mother has at all times been S's primary carer. Even during those years when contact worked well, the longest period of time that S has spent in his father's care is 15 days.
(2) The evidence demonstrates that S is doing well in every respect both at home and at school. I have found that the mother's physical care of S is of the highest order. Although there is no evidence from S's present school, to which he moved in September, the evidence from his Junior School was that he was doing very well both academically and in sport. Save for her relationship difficulties with the father, which have led her to be (to a greater or lesser extent from time to time) hostile to S enjoying a meaningful relationship with his father, the mother is otherwise bringing up a son who is flourishing.
(3) S continues to express a strongly held view that he wishes to remain in the care of his mother. That has been his position consistently since direct contact stopped in February 2006. No stone has been left unturned in trying to encourage a change in S's position. Those efforts have been unsuccessful. He is now rising 12 years of age. His wishes and feelings are entitled to respect.
(4) Direct contact last occurred in February 2006. S has not been to his father's home for almost four years. The closest he has come to having direct contact with his father, at the cross country race in March 2009 (see paragraphs 54 to 69 of my judgment of 15th June 2009), was a complete failure.
(5) Given that there has been no direct contact for almost four years and given, too, the distress which S has shown at some of the steps that have been taken to try to break the contact deadlock, it can reasonably be anticipated that a change of residence would be likely to cause S significant distress. Dr W's opinion is that such distress is likely to be short-lived. However, I accept that it is likely that that distress would lead to management difficulties in effecting the transfer. Those difficulties could conceivably require the use of some degree of force in order to achieve the transfer. It is likely that the distress would continue in the early days following transfer.
(6) A move to live with the father would involve not only a change of primary carer but a significant reduction in the level of contact that S has with members of his maternal family and in all probability the loss of school friends. It would also involve the disruption of a change of school after just one term at his present school.
(7) The father works more than an hour's journey away from his home. It is clear that on weekdays substantial responsibility for caring for S would be delegated to his stepmother and to his paternal grandparents.
(8) I have expressed concerns about the father's lack of insight and empathy. Unless the father is able to make real changes in this area it is likely that this could undermine S's placement with him.
(1) I have found that S has already suffered emotional harm. I have accepted evidence from Dr W that S has become alienated from his father. I have also accepted Dr W's evidence that there is a risk that the long-term consequences of alienation and estrangement from his father could be damaging to S's welfare. That damage could include the kind of psychosocial harm (behavioural and emotional disturbance, academic under-achievement, relationship difficulties) described by Dr W in his evidence and to which I referred earlier in this judgment.
(2) Although S has very clearly stated that he does not wish to see his father (and has called him 'a monster' and has said that he 'hates' him) I have accepted evidence from Dr W that as a result of the alienation not only are those views irrational they are also unreliable. In my judgment of 15th June 2009 I found that video footage clearly showed S to have been relaxed, happy and at times quite animated during his stay with his father in January 2006. I have noted some recent signs that S's expressed wishes and feelings may not genuinely reflect his true wishes and feelings.
(3) I am satisfied that the father is being sincere in the assurances he gives concerning the maintenance of S's relationship with his mother and maternal family in the event that S were to live with him. Given all that the father has faced over the last ten years, one might have expected him to be angry. In fact, as Dr W noted, he is, quite simply, very sad. I have detected no sense of malice or ill-will towards the mother. The father has pursued these proceedings as determinedly as he has because he cares deeply about the welfare of his son. In my judgment the father would be in a better position to maintain the mother's relationship with S than vice versa. I am confident that the father would prioritise the need for S to continue to enjoy a close and loving relationship with his mother.
(4) I am satisfied that the father, together with his wife and parents, would be able to meet S's physical and educational needs to the same standard as that provided hitherto by the mother.
(5) Although in my judgment of 15th June 2009 I accepted that the mother had made some progress since the previous hearing in November 2007, I was not wholly convinced that her intent had been to make contact work. I expressed the opinion that it was equally possible that her efforts had been intended to persuade the court that she had tried to make contact work. I said that my concerns about the mother had 'lessened only slightly since December 2007'. That remains my position.
(6) Previous orders of the court have not been effective in re-establishing direct contact. I do not share Mrs K's optimism that indirect contact may in due course lead to a resumption of direct contact. If the status quo remains and the court proceedings come to an end I consider the prospects for re-establishing any form of contact between S and his father to be remote. In my judgment the overwhelming probability is that S will have no further contact with his paternal family unless, in later adult life, he himself seeks it out.
(7) Following on from that last point, the mother has accepted that she has lost control of S. I am confident that even if the mother were motivated to provide real encouragement to S to see his father it is unlikely at this late stage that that encouragement would bear fruit. In any event, I am not confident that the mother is genuinely motivated to provide that encouragement.
His Honour Judge Clifford Bellamy
Designated Family Judge for Warwickshire and Coventry
4th January 2010
30A I formally handed this judgment down earlier today. At the invitation of Miss Meyer, for the mother, I add this word of clarification to that section of my judgment which deals with Dr W's evidence in respect of transfer of residence (paragraphs 26 to 30). In her submissions on 21st December Miss Meyer urged me to approach with caution Miss Ball's criticisms of Dr W's evidence on this issue since those criticisms had not been put to him in cross- examination. Miss Meyer invited me to consider recalling Dr W. I declined to do so. In arriving at the decision not to adjourn to enable Dr W to be recalled I had in mind a number of factors. In particular, I have received a substantial amount of evidence from Dr W, both written and oral, upon which I was satisfied that S has suffered harm and is at risk of future harm (as discussed, for example, at paragraphs 80 and 81 of this judgment). I was satisfied that Dr W's evidence also enabled me to come to a conclusion about the distress that S would be likely to suffer if I ordered that residence be transferred to the father and as to whether that distress was likely to be of a magnitude that would cause him harm (see paragraphs 76 and 82 of this judgment). In deciding whether to adjourn to enable Dr W to be recalled a balance has to be struck between, on the one hand, my assessment of the need to hear further evidence from him and, on the other, the further delay to this very long- running case that would inevitably have been caused in arranging for that further hearing to take place. I came to the conclusion that the balance came down against the proposed adjournment.