England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

IN THE MATTER OF THE CHILDRENS ACT, 1989
AND IN THE MATTER OF A AND D (CHILDREN)

		Royal Courts of Justice
		1st September 2017

MR JUSTICE BAKER:

1. This is an appeal by a father against the order of His Honour Judge Harrington dated 15^th May 2015, by which he dismissed the application by the father for an order for contact with the two sons of the parties, whom I shall refer to as, "D" and "A".
2. D is aged fourteen and three-quarters and A is now aged twelve. The boys live with their mother who has been separated from the father for a number of years and, regrettably, these boys' lives have been blighted by court proceedings over a number of years. It is unnecessary to set out the history of the litigation in any great detail. It is one of the many sad cases which come before this court in which parents are unable to agree, for one reason or another, about the arrangements for their children.
3. The proceedings have been going on for, I think, over six years now. In 2011, the mother was granted a residence order under the old law in respect of both boys. There have been subsequent proceedings under the Children Act on applications by the father for contact. There has been at least one application against the father for a non-molestation order which was granted in 2012 and the focus of the difficulties has been over the arrangements for contact between the boys and their father.
4. By 2015, the boys were having supervised contact with their father on a direct basis. The matter continued to be subject to court proceedings and in 2015, a District Judge directed that there should be an assessment by a psychologist. As a result, Sue Whitcombe was instructed and prepared an initial report dated 30^th November 2015. In the course of her assessment, she interviewed and analysed both parents and interviewed both boys. It is interesting to note that she was very clear in her report that the boys wanted to see their father. D told her how much he loved his dad, enjoyed spending time with him and became excited and animated talking to her about the time they had spent together. Contact had been arranged for the following day to be observed by Ms. Whitcombe and D told her that he was excited and looked forward to seeing his father very much. A also told her that he wanted to see his father. He said he was happy to be seeing him again and wished that he could be seeing him more often.
5. The lengthy report by Ms. Whitcombe comprehensively analyses the issues as they seemed to her and focussed on concerns and criticisms of the father's behaviour and noted criticisms made and concerns raised by the mother about how he was controlling and aggressive and sometimes illogical and bizarre in his conduct. Ms. Whitcombe herself was unable to obtain a definitive sense of how he was manipulative and controlling but, nonetheless, noted the concerns which PC raised. She also noted the father's description of the mother's behaviour which he described to her as erratic, polarised and blowing hot and cold.
6. The report is, as I say, detailed and comprehensive and it is unnecessary for me to go into it any further. Suffice to say that she reached the clear conclusion that both boys would benefit for the maintenance of their relationship with their father through direct and indirect contact. She made a number of recommendations about how that should proceed. Having observed the contact session herself, she recommended that communications between the parties should be through an independent third party. She recommended supported direct contact in January and February, and provided there were no issues or concerns with supported contact, proceeding to direct contact extending towards staying contact after the school holidays. In other words, she was clearly of the view that direct contact should continue and, indeed, should be expanded.
7. As a result of that report, the parties returned to court and District Judge Asplin directed that there should be three periods of contacts in December 2015, January and February 2016, each for four hours on dates and times to be agreed, to be supported and supervised by an independent third party with the matters returning to court thereafter.
8. The independent third party identified was Jo Rees-Bains, who duly supervised three sessions of contact and prepared a report dated 1^st March 2016 for those sessions. She stressed that she believed the father dearly loved the boys, but did so in his own way and on his own terms. She had substantial criticism of the way in which she said he behaved in contact, in particular, on matters which he discussed with the children which were wholly inappropriate. As a result, she recommended that contact should not be moved on from its current format, namely supervised contact. She was concerned that the father had what he described as "huge difficulties around various events in his life and, especially, any connected to the mother". She raised a number of other concerns about the father and about the risk that more extensive contact would expose the boys to emotional harm. She concluded by observing that, if the father is not prepared to address his behaviour, she did not believe that contact could move forward successfully, as it would only revert to the pattern of some years previously, which had resulted in ongoing proceedings and cross-allegations.
9. Following that report, the matter returned to court and further directions were given by deputy district judge, including a direction for a supplemental report from the child psychologist, Ms Whitcombe. That supplemental report was filed on 11^th May 2016, in which the psychologist noted the concerns expressed by Ms. Rees-Bains but observed that the report suggested the boys had enjoyed their contact. She further expressed some concerns about Ms. Rees-Bains' analysis as set out in her report, and suggested that the relationship between Ms. Rees-Bains and the father may have been difficult from the outset. Ms Whitcombe concluded that her opinion that the boys would benefit from the maintenance of the relationship with their father, both through indirect and direct contact, remained unchanged. She noted the difficulties which had emerged in Ms. Rees-Bains' report but concluded that there should still be direct contact. She thought that the father should now seek some support to enable himself to become more self-aware and address certain personal difficulties. She agreed with Ms. Rees-Bains that to move on from supported contact at that stage risked a return to previous problems, although she did not preclude moving on to unsupported direct contact, including staying contact, in the future. For that to be successful however, she thought the father needed to reach a position where he was able to engage in cooperative social communications and interactions relating to child arrangements from a more considered objective and holistic stance than he was currently able to demonstrate.
10. In the supplemental part of her report, she noted she thought she had listened to audio recordings provided by the father seeking to demonstrate that Ms. Rees-Bains' report had been inaccurate in a number of respects, and expressed some concerns about what had occurred and noted the discrepancy between the conflicting accounts.
11. Overall, she reached a conclusion that the boys would continue to benefit from the maintenance of their relationship with their father. To minimise the potential for conflict and breakdown in arrangements, there should be further management of a detailed contact order by an independent third party. She recommended that, subject to the father engaging with appropriate support and demonstrating insight into his difficulties, direct unsupervised contact be commenced on a gradually incremental basis in line with the needs of the children.
12. Following that report, the matter was reviewed by the children's guardian who, effectively, endorsed the proposal that there should be ongoing contact. Her recommendation was that, for the time being, there should be contact every four hours, supported by an independent contact supervisor.
13. The matter was thus listed to come back to court on 23^rd June 2016 before District Judge Asplin, but at that hearing, the father was given leave to withdraw his application. I have asked him today why he took that step and he informed me that, having regard to all the circumstances as they then were, he thought it right to take a step back. In particular, he referred to turmoil in the children's lives. The mother is somewhat sceptical about the father's reasons for withdrawal, but for whatever reason, the father decided not to proceed with his application at that stage, and thus it was that there has been no further direct contact between the boys and their father for some eighteen months.
14. Indirect contact was ordered by email, text and phone once a week together with letters and cards, but the father's case has been that the mother has failed to comply with the order for indirect contact. The father sought to restore that application. He made an application to enforce that order in September 2016 which came back before District Judge Asplin.
15. The father did not attend that hearing and, after hearing the mother, the District Judge made an order in these terms:

"The arrangements made on 23^rd June 2016 are confirmed. The mother will abide by the agreement as to indirect contact. The court does not find that any further action is required. Phone calls to the boys on a designated phone shall be at 6.30 p.m. or such other time as is agreed. The court notes that the boys do not have Skype or Facetime."

16. At or about the same time, the father filed this application for contact seeking in effect to restore his old application. That application was then transferred to the Gloucester Family Court because the children, with the mother, had moved home across the border from Gloucester in the ensuing period. Subsequently, there was a first hearing dispute resolution appointment which, after various adjournments, came before District Judge Hebblethwaite on 8^th March 2017. He made a variety of directions as to the filing of material and directed the matter to be listed for a final hearing before Judge Harrington on 15^th May. Thus, it was the matter came before Judge Harrington on that date.
17. The hearing seems to have been relatively brief. According to the father, Judge Harrington indicated that he had made his mind up as soon as he came into court. The mother does not accept that is what happened. It is her case that the judge began the proceedings by asking the father in what way the circumstances had changed since the matter was last before the court in 2016.
18. I do not have a transcript of the hearing before Judge Harrington, but I would be very surprised if Judge Harrington, who was an extremely experienced judge, were to have indicated he had made his mind up before hearing argument. Again, without seeing a transcript, it seems to me likely the father may have misunderstood what the judge was saying at that point. It is, however, clear that the judge decided to deal with the matter relatively summarily.
19. In his relatively short judgment, the judge sets out the history in much briefer terms than I have and noted the involvement of professionals up to that point. However, somewhat surprisingly, whilst he noted that there had been a number of reports in the earlier proceedings, it seems that not all of those reports were before him. Certainly, for example, he had not seen the guardian's report, to which I have just referred, in which the guardian made the recommendation for ongoing direct contact.
20. Prior to the hearing before Judge Harrington, the Cafcass family court advisor had filed a further report in which she had concluded:

"It appears that little has changed with regards to concerns raised and considered in previous hearings. Thus, it is my professional opinion that the reports and the subsequent recommendations prepared for the court hearing in June 2016 should be considered and still stand. It is my professional view that I do not feel that it would be in D and A's best interest for additional reports to be completed when it is apparent that the issues remain the same. I am very concerned about the length of time D and A have been subject to court proceedings. A concern also identified by the previous Cafcass officer in previous hearings. It would therefore be in the children's best interest for there to be minimal delay in any court proceedings."

21. In his judgment, having noted what the Cafcass officer said in the reports cited above, the judge observed:

"It is a sad situation because it appears that, had the father been slightly more cooperative and shown slightly more humility, the children would be seeing him on a regular basis. Although the contact would probably be supervised, it would have then moved on to being unsupervised. Looking at the background and based on what I have heard and read, it seems to me that that father is the author of his own misfortune or rather the author of the children's misfortune."

22. Having noted the arrangements for indirect contact, the judge concluded his judgment in a passage which really sets out his reasons insofar as they are recorded in the judgment in the following terms:

"11…The fact that these proceedings have continued as long as they have is clearly not in their interests. Furthermore, it is not in the boys' interest for the father to discuss these proceedings with them. Apparently, that is what he does and they are fully aware of what is currently happening.

12. In order for the father to father to obtain an order from me today, he would have to show that there has been a change in circumstances since the last order was made on 23^rd June and confirmed on 14^th September.

13. The only change in circumstances that the father has been able to point to is that the boys are now together at the school in Cirencester and, therefore, he says that direct contact would be easier to facilitate.

14. There is, though, currently no order for direct contact in place and I conclude that he has not established even a prima facie case that the circumstances have changed, so that I could vary the order which is currently in place. Accordingly, his application has to be dismissed."

23. Thus, the order made at the conclusion of the hearing before Judge Harrington was simply that the father's application be dismissed.
24. On 22^nd May, the father filed a notice of appeal against the judge's decision. On 30^th May, I gave preliminary directions, including an order for a transcript of Judge Harrington's judgment. That transcript having been produced, the papers were referred back to me and on 26^th July, I gave the father permission to appeal against the order and gave directions for the hearing before me today.
25. The father and mother have attended before me today appearing in person. Each has put their case before me, if I may say so, clearly and sensibly and I am very grateful to them for the manner in which the hearing has been conducted.
26. The father makes a number of points in his documents which is a clear and succinct summary of his grounds. Of particular importance are the following arguments.
27. First, he says that the judge failed to have proper consideration of the expert reports which were available from earlier proceedings and which had not, as a matter of fact, been fully considered by a court at any earlier stage. It will be recalled, of course, that the Cafcass officer had drawn attention to those reports and said that the father's application could be determined on the basis of those reports without any further report. The father's first complaint is that the judge failed to give any or any sufficient weight to those reports and, in particular, the recommendations of Ms. Whitcombe and the guardian that there should be direct contact.
28. Secondly, the father criticises the judge for determining the matter simply on the basis of whether or not there had been any change in circumstances. He says that the father failed to carry out a full analysis of the children's welfare.
29. Thirdly, he says the judge was wrong to say that there had been no change in circumstances. He says that at the time when he decided to withdraw his application, the family's life had been in a state of turmoil. Subsequently, it had settled down with the move of the mother and the children following the breakdown of her relationship and the boys are now in the same school. In short, the dust has settled and it was his case that it was now an appropriate point for the question of contact to be reconsidered.
30. Fourth, the father contends that the judge failed to consider the range of factors in the welfare checklist and also, in particular, failed to have regard to the presumption now enshrined in s.1(2)(a) of the Children Act (as amended) that, unless the contrary is shown, the involvement of a parent in the life of a child will further the child's welfare.
31. Finally, the father contends that the judge failed to consider all the options and alternatives which were open to him to bring about a resumption of direct contact.
32. The mother has attended today at relatively short notice because she has, in fact, been on holiday and has had to return from France a day or so earlier. I am very grateful to her for attending. As a result, she has not been able to file a skeleton argument but has put forward oral arguments before me today.
33. She accepts the contention that there was a degree of turmoil in the family's life in June 2016, but does not accept that was the reason why the father withdrew his application. She says the father's actions of withdrawing his application was typical of his behaviour over a period of time. He has been inconsistent in the way in which he has pursued the issue of contact, sometimes pursuing it, sometimes not, and that that has been, generally, to the disadvantage of the children's emotional welfare. She contends that the reason for the father's decision to withdraw was that he was simply no longer prepared to tolerate contact taking place on a supervised basis.
34. She contends that the children are now settled after their move, that the father is not taking up indirect contact in the way prescribed and that, in all the circumstances, the judge's decision was in accordance with the welfare interests of the children.
35. Judges dealing with applications in long-running private law cases are entitled, in appropriate circumstances, to take a robust approach and make summary orders. With great respect to Judge Harrington on this occasion, however, it seems to me that such an approach was not appropriate here.
36. The judge's principal approach was to ask himself whether or not there had been any change in circumstances. That might have been an appropriate step to take where there has been a contested hearing relatively recently at which the issues have been properly and fully ventilated. In such circumstances, if a parent then returns to court and seeks to reopen the issue, then it is likely that a court will take the view that there should be no further extensive investigation, unless there has been a significant or material change in circumstances. In this case, however, the situation is quite different.
37. The parties had come to court in June 2016 with a clear issue as to the terms upon which direct contact should take place. It was accepted that there should be direct contact. The issue was whether it should be supervised and remain supervised indefinitely, or whether it should be supervised and then move on to unsupervised and staying contact. For whatever reason, that issue was not argued out before the court and instead, the father decided to withdraw his application. It may well be that the mother is right that the father did so for reasons which are contrary to those he puts before the court now, but the fact remains that the important issues surrounding direct contact were never ventilated in court.
38. It seems to me, therefore, that the approach of Judge Harrington to ask whether or not there had been any change in circumstances and finding that there had been no change and to summarily assess the application was, with respect, the wrong approach in the circumstances.
39. Furthermore, it seems to me that the judge was obliged, on any view, to consider the welfare of the children more broadly. Had he done so, he would have, surely, observed the clear recommendation of Ms. Whitcombe and the guardian that there should be direct contact, a conclusion which, to a degree, was supported to by the evidence report from Jo-Rees Bains who had supervised the three sessions of contact in December 2015 to February 2016, notwithstanding her very significant criticisms of the father's conduct during those contact sessions and more generally. Thus, he would have seen that a number of professionals had independently reached the view that there should be direct contact.
40. Had he considered the reports as, I respectfully suggest, he should have done, and as the Cafcass officer herself invited him to do in her report of November 2016, he would have realised that the welfare of the children required direct contact with their father. In those circumstances, it seems to me likely that he would have taken steps to see what he could do to bring such contact about. That approach would have been entirely in accordance with the paramountcy principle in s.1 and with the statutory presumption now enshrined in s.1(2)(a), that involvement of a parent in a child's life will further the child's welfare.
41. Accordingly, it seems to me that the decision by Judge Harrington to dismiss the father's application for contact summarily was wrong and cannot stand and accordingly, this appeal is allowed.
42. I propose to remit the matter to His Honour Judge Wildblood QC, the designated family judge for Avon and Gloucester. It seems to me that, given the lengthy history of the proceedings, and the difficulties to which I have alluded in this judgment, that it may well be appropriate for Judge Wildblood himself to take on the responsibility for case managing this case and conducting any further hearings. I am content to leave it to Judge Wildblood to decide precisely how this case should be managed in the future.
43. I conclude simply by observing that, although I am not making any final decision, that it is important that the parties reflect carefully on what has happened and, if it is clear that these boys want to see their father, then, unless there is a good reason to the contrary – a strong reason to the contrary – it is likely that some direct contact will ensue, although the basis for that contact, and the circumstances in which it comes about, are matters which this court cannot rule on today.
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