English and Welsh Courts - Miscellaneous

IN THE LINCOLN COUNTY COURT

		Lincoln County Court High Street Lincoln
		13th November 2012

JUDGE OWEN QC:

1. These proceedings concern the welfare of 'S', born [a date in] December 2008.The parties to these proceedings are the applicant father and the respondent mother. The relationship between the parents is acrimonious and embittered which is likely to have a detrimental effect on the emotional welfare of S.
2. The proceedings were commenced on 26 October 2011 when the father (for the third time) applied to the court for a defined contact order.
3. There are before me a number of applications. First, an appellant's notice issued (out of time) by the father seeking to appeal the order of District Judge Maw of 18^th July 2012, subsequently reaffirmed by District Judge Cooper in August 2012 whereby the applicant was required to submit to a psychological assessment, to be undertaken by Dr Jackaman. In the event of non-compliance by the father, both in relation to the release of his medical records and cooperation with Dr Jackaman's assessment the proceedings would stand as having been dismissed.
4. It appeared that after correspondence passed between the Solicitors for the mother and the court the court was informed that the assessment had not in fact taken place and nor had the medical records been authorised to be released. Therefore the learned District Judge made the second order to which I have referred and the father's application for contact was dismissed.
5. The father subsequently issued an appellant's notice in which he sought to have those orders set aside.
6. Secondly, the father also made an application on 24^th September 2012 that these proceedings be transferred to a different court centre on the grounds of 'hostility' and bias on the part of 'the Judges' who have dealt with these proceedings.
7. That application was met with a further application by the mother who sought an order pursuant to Section 91(14) of the Act. That application was identical in terms to the application issued on 14^th February 2012 (issued in response to the application for a defined contact order). That earlier application was before the learned District Judge on 2^nd April 2012 when, implicitly, he made no order. That is, the learned District Judge made an order which recognised the father's continuing claim for contact.
8. So far as the mother's current application under section 91(14) is concerned, Mr Jacques on her behalf submitted that it would be appropriate to allow the application to remain in being and not be determined until at the conclusion of the final hearing. That approach is supported by Mr Cleary on instructions on behalf of the children's Guardian.
9. To understand why the father's current application for contact was made it is necessary to have a brief understanding of the history of these protracted and acrimonious proceedings which were preceded by no less than two similar proceedings, each one of which concluded with a final order but which left matters incomplete in the sense that the final order for the previous proceedings was made on the basis that the father would submit to a psychological assessment and/or in the event of not doing so the arrangement for supervised contact at a contact centre pursuant to an earlier order would continue.
10. It is unnecessary for me for the purposes of this judgment to recite in any further detail the protracted history of this matter. There appeared to be a reasonably arguable basis for the father's current application for contact. Contact at the contact centre appeared to be progressing well and he was concerned that without a formal application there could be no progress. The application was contested on the basis that the father had not cooperated with the psychological assessment by Dr Jackaman.
11. The father in turn was unhappy with being required to undertake such an assessment in circumstances where he was being required to pay for it (and did not see the need for it). The father took exception, it seems to me not unreasonably, in that the approach of one of the learned District Judges was to the effect that "since you (the father) had asked for the assessment then you should pay for it." Of course, that was not the position.
12. The difficulty was (and it appears to be common ground) that the father, who objected to the assessment, was not in fact and never had been capable of paying privately for such an assessment. That being the practical reality of the case progress with contact could never be made if the order was required to stand and if the father refused to cooperate in the assessment. That impasse suited the mother.
13. In those circumstances it appeared to the father that he had no alternative other than to institute (again) proceedings and thus to take up matters where they had ended unsatisfactorily in the previous proceedings. Mr Jacques submitted, not unreasonably, that this demonstrated a course of conduct calculated by the father which would at least attract the jurisdiction of the court under Section 91(14).
14. The question which arises is whether I should dismiss or adjourn generally the mother's application. (In fact, it would appear that there are two such applications before the court).
15. In my judgment there is no proper basis to make the order sought. The first was applied for in February 2012 and which did not result in an order being made. The second application appears to have been issued on a 'tit for tat' basis. Whilst tempting though it is to accede to Mr Jacques' submission that no harm would be done if the application(s) were simply adjourned I propose to dismiss both of those applications. They should never have been brought. I am not convinced that they were brought for a proper purpose. If at the end of the hearing when the full evidence is before the court there does appear to be a proper basis on which to make such a draconian order, then I have no doubt the Judge then seized of the matter would make the appropriate order.
16. As for the father's application to transfer these proceedings to a different court centre on the grounds of hostility and bias, the father indicated today that that application is no longer pursued. It had no proper foundation and no realistic prospect of succeeding in any event. I formally dismiss that application.
17. As for the father's appellant's notice, to which I referred at the outset, the father also indicated that it was no longer pursued. Whilst it is true that by order of 13 August 2012 the learned District Judge confirmed that the proceedings stood struck out, that order had since been overtaken by events not least when the matter came before me on 2^nd October 2012, when the proceedings were restored. At that time it appeared to me that the appellant's notice was not in fact pursued and whilst my order implicitly indicated that the proceedings had been restored no formal order was recorded.
18. When the matter was later considered on paper by Judge Inglis on 8^th October 2012 it appeared from the father's continuing position that the father was, in fact, still pursuing his appeal. The learned judge required the father to confirm whether the appeal was pursued or had been rendered redundant by the order of 2 October 2012. I gave further directions (on paper) on 2 November 2012 as it appeared that all matters remained in contention. The father subsequently indicated in his written position statement that his proposed appeal was pursued. As my order of 2^nd November 2012 shows the apparent basis for the father's appeal, given the fact that his proceedings had been restored and directions made, was that he wished to use that appeal as a vehicle for pursuing his personal grievance which he evidently continued to nurse or harbour against the mother's solicitor which in turn arose out of an alleged accusation made, he says, about him, at court by [her] concerning the CAFCASS officer, Mr Enwright.
19. If that was the basis (and no other basis is apparent) then that too could have no realistic prospect of succeeding. If the father has a personal grievance or so-called claim against the solicitor then there is a proper way of dealing with it. However, it is not appropriate or permissible to clutter these proceedings in the way he sought to do. Thus, the appellant's notice is formally struck out and dismissed.
20. Therefore, the decks are almost cleared in this protracted contact dispute. The matter which remains contested is whether the order which has been made, on more than one occasion, that the father should submit to a psychological assessment should stand.
21. When the matter came before me on 2 October 2010 it appeared that whilst the father objected to the order requiring the assessment to be undertaken by Dr Jackaman, who, he complained, was the mother's solicitor's choice, he would not, in fact, object to an assessment by a psychologist of his own choice, namely, Dr Levy provided the assessment could take place in Lincoln. It was the advocates' understanding that that assessment could and probably would attract public funding. On that understanding the issue concerning the assessment appeared to be resolved. If funding problems arose the parties would report back to the court.
22. However, after that hearing, in a written communication by the father to the court it appeared that he did not in fact wish to undertake the assessment by Dr [Levy]. The Children's Guardian informed the court by email of 30^th October 2012 that there was a problem with the proposed funding and invited the court to restore the matter for further directions including consideration of whether the requirement for an assessment should stand.
23. Mr Jacques explained that enquiries had been made of the Legal Services Commission and that provided the relevant President's Protocol was followed the Legal Services Commission would (as they must) submit to the order of the court, but that they, not unreasonably, required a formal order and which had not previously been sought.
24. Mr Jacques' submissions were supported by Mr Cleary to the effect that the court had previously concluded that an assessment was required before contact could progress and that it has now been confirmed that there is available an appropriate mechanism which would provide the necessary funding.
25. Mr Cleary submitted that there were two principal grounds why the court should confirm the order for the psychological assessment by Dr Levy. First, in relation to the matters set out at paragraphs 30 to 32 and 58 to 59 of the report of Miss Gissing, of CAFCASS, dated 12^th May [2011]. That is, by reason of the fact that the father has a conviction for rape in 1988 and that a similar allegation was dismissed by a jury in 1993. It is submitted that the fact of either or both of these two events might give rise to a risk to S, namely a risk of sexual abuse.
26. Mr Cleary candidly explained that Miss Gissing personally had no idea whether or not those facts gave rise, in fact, to a risk but, equally, she does not know that they do not pose any risk – of sexual abuse. Thus, Miss Gissing is in no position, from her own experience and standing, to say that the mere fact of a conviction of rape, twenty four years ago or a dismissed allegation of rape nineteen years ago, with no subsequent conviction or allegation, gives rise to any significant risk of sexual abuse to the child concerned.
27. In these circumstances, without more, there is no proper or evidential basis, to justify any such assessment. The suggested justification for the report based on real risk (of sexual abuse) is, at best, mere speculation. This approach seems to me to be flawed. Furthermore, there is obvious doubt as to the relevance of these historical events given the absence of any further allegation or misconduct for over twenty years.
28. No evidence has been presented to the court to show that, subject to the matter being explained by an appropriate expert, there is a real risk of sexual abuse. No request has been made for an assessment to identify and then assess that risk either by the children's Guardian or by the mother. What appears to have happened is that by simply posing the question the father has been required to disprove the existence of a significant risk failing which the assertion will be assumed to be fact. I do not consider this approach by the Children's Guardian, supported by the mother, to be correct.
29. I have sympathy with the objection of the father to this approach. I certainly understand why he might feel aggrieved by that approach. I am concerned that the suggestion has been made quite openly without there being any rational, evidence based reason for the assessment and that the matter has been thrown across to the father to disprove it. This is not the way in which ordinarily a risk would be dealt with by the court. If there was a real risk, albeit potential, requiring assessment, then that is precisely the question which the Children's Guardian herself ought to have ascertained in making her recommendations to the court.
30. Similarly, if the mother, purporting to have an interest in the welfare of S considered that the fact of a conviction 24 years ago gave rise to a real risk (which had to be professionally assessed before any form of progress in the contact should be made) one would have thought that the mother would have raised it with the court. Rather, she has chosen to stay silent preferring to watch the father have to disprove the assertion.
31. If matters ended there, there would be in my judgment a proper basis to review the original order for a psychological assessment, if only to in the child's interest, to remove the impasse which has occurred, particularly if the only way an assessment could take place would be at the expense of the father. But that is not, in fact, the position here.
32. The second basis relied upon by Mr Cleary in his helpful submissions is a freestanding basis which is summarised albeit very briefly at paragraphs 50 and 52 of Miss Gissing's report of May [2011]. This part of the report reveals that both parents are distrustful and antagonistic towards each. These paragraphs show that the father had demonstrated a certain animosity towards the mother which may have been allowed to impact on S. The concern was that which Miss Gissing referred to at that time as a denigration by the father by the mother towards S, this would have an effect upon her emotional well-being, which as a matter of principle I am sure is correct.
33. That argument appears also to seek to pray in aid general matters of conduct alleged against the father which culminated in an agreed schedule of findings of fact which was placed before the court and which the court approved, thereby rendering unnecessary a fact finding hearing in March 2011. Mr Cleary drew attention to the agreed findings [which] suggest that there is a pervading atmosphere of antagonism by the father towards the mother.
34. Indeed, it is suggested that the court should go beyond the schedule and look at other matters which existed before the schedule of allegations was agreed. I was surprised to see that the Children's Guardian appeared to embrace that approach. This issue was determined, and approved by the court at the time and there is no good reason to seek to go behind the previous order.
35. The court had independently considered and approved that schedule, and there is no question of going behind that order. In any event, those allegations do not appear to carry weight, viewed objectively, in the present context.
36. Having said that, the problem for the father is that he has demonstrated consistently to the court, both in written communication and oral presentation of his case, that he does appear to be fixated upon injustices which he is too quick to identify and which appear to distract him from the real question. In particular, his animosity towards those whom he regards as being against him including the mother comes across in his case. It appears to me that the nature of the parents' relationship and the general atmosphere for S as a result might fairly be described as 'toxic'. That is not to say that the sole, or indeed, perhaps, major responsibility for that is the father, for the mother, in my judgment, denigrates and undermines the father in the presence of S who should not be exposed to such comments and behaviour from the mother.
37. It is in these circumstances that I am persuaded on balance and in the interests of S, and I should add, the father, that the psychological assessment by Dr Levy is necessary, given the somewhat exceptional history and circumstances of the case. The assessment has held up the progress of the proceedings. It is now capable of being undertaken and it will allow the father to explain to an objective expert his general conduct in these proceedings so far as they affect his relationship with S. He will be able to explain himself to Dr Levy, from his perspective, the reasons why contact should no longer be restricted to a contact centre.
38. My concern is that S appears to be caught in the middle of these two embittered parents each of whom is in need of insight and understanding of S's position. It is in these circumstances, with a view to ensuring that the best possible conditions can be created that the assessment should stand so as to ensure the success of real progress with contact. It seems to me that provided the risk of emotional harm from the parents is addressed, not least by CAFCASS and the Children's Guardian, the sooner the better. S should then be able to move on to a more normal form of contact with her father away from the confines of a contact centre. I think it is appropriate, on balance, that the order should stand. It is to be hoped that the father might now see the light, co-operate with Dr Levy and have this assessment completed as soon as possible.
39. There are related matters which the father has raised consistently in the context of such an assessment. First, that his GP notes or such medical records as Dr Levy may reasonably consider to be necessary for the assessment should be sent directly by the GP to Dr Levy. I agree and I so direct. Dr Levy can determine whether he requires any, and if so, what medical records. The father will pursuant to this order provide an appropriate authorisation.
40. Secondly, the father was concerned also about the letter of instruction. He had refused to agree to the previous draft letter dated 9^th November 2012. He explained that he considered it was rambling, failed to get to the point and failed to identify matters fairly to Dr Levy. Mr Jacques kindly produced a copy of this letter to the court. The background appears to be factually accurate and objective. The paragraphs at the top of the third page would appear to be amenable to pruning given the fact that the mother's application has been dismissed in relation to Section 91(14).
41. So far as the questions are concerned, they would appear to be along the appropriate lines. The assessment has not been ordered by me to deal with Miss Gissing's unfounded speculation over the historical conviction. The real concern which needs to be addressed is the risk of emotional harm, if any, posed to S by the father's attitude towards the mother in the context of unsupervised contact and, frankly, the risk of emotional harm posed by the mother's attitude towards the father which seems to me to have been overlooked due to concentration on the father's faults. The report of Miss Gissing of 12^th May [2011] should be provided to Dr Levy as indeed should a copy of this judgment if practicable.
42. I have given careful consideration as to whether the letter of instruction might, however, include specific reference to Miss Gissing's mentioning of the question whether the fact of the conviction for rape 24 years ago and the fact of a dismissed allegation of rape 19 years ago, without more, carries with it any, and if so what, real risk of sexual abuse on the part of the father towards S.
43. On balance, in light of the report and the absence of any other detail , that additional question may be posed. The purpose of the assessment is not to assess a risk of sexual harm for, as indicated, there is no evidential basis to justify such an assessment. It may well be that, in light of the facts presented, in particular the events since 1988 and more particularly over the last two to five years, Dr Levy would have little difficulty in stating that on the evidence available there is no real risk of sexual abuse posed by the father. If there is, then that is a matter that can then be dealt with should the need arise.
44. At this stage, for these reasons, I am not inclined to make any further order in respect of disclosure for the purpose of fishing for something to give support to Miss Gissing's speculation. I am certainly not inclined on the information presently available to direct that the Chief Constable shall be required to trawl through all his records or documents in relation to these matters (the conviction and dismissed allegation) at this stage. It does not appear to me to be a proportionate use of their resources or court resources within these proceedings.
45. The final matter which the father has raised concerning the letter of instruction is that the first draft merely referred to 'a bundle of documents'. He wished to know which documents in fact had been provided. Whilst that curiosity was entirely consistent with the father's lack of trust for anybody involved in this case, there was a proper basis for the father's objection for he is entitled to know which documents are referred to. It is clearly right and proper that the assessment letter of instruction identifies those documents provided - and only those documents which the solicitor for the Children's Guardian reasonably considers necessary in light of this judgment.
46. Ideally, a draft list of (limited) documents should be circulated by the Children's Guardian to all parties who I hope and expect will approach the matter sensibly and constructively to ensure that the letter of instruction is sent without delay. If I am required to resolve any contentious matter in this regard the parties concerned may draw the matter to my attention in correspondence and the matter may be dealt with on paper.
47. The final matter which arises concerns interim contact. This case stands out as being unusual in that contact has been taking place contact centre for many, many months if not, indeed, years. That restriction has been imposed largely through the intervention of the Children's Guardian, who has hitherto taken onboard the mother's alleged concerns, including at one stage, for example, the (apparently groundless) risk of abduction.
48. As matters progressed, inevitably, given the father's attitude to those whom he believes are against him, the father appears convinced that Miss Gissing has sided against him in favour of the mother. The father lacks objectivity in this respect.
49. However, so too, inevitably, the mother's attitude towards the father and the issue of contact has emerged. Indeed, on occasions the mother's attitude has been witnessed if not by Miss Gissing directly, certainly by the contact centre staff. The mother is reported as having called the father "…a F…(ing) W…(r)", in front of S and the father. That is symptomatic of the mother's attitude to the father, but it is equally symptomatic, it appears, of the mother's failure to have regard to the welfare of S.
50. That is entirely consistent with the very detailed and objective report undertaken personally by Miss Gissing at the most recent contact session on 10^th November 2012 , which reveals a somewhat worrying picture. It describes S attending contact with a cold, unresponsive if not entirely negative attitude towards her father, which could only be explained, as Miss Gissing noted, by the malign influence over her by the mother prior to contact. During the course of that contact session, by reason of the bond which in fact exists between father and daughter, that initial facade melted and contact proceeded normally thereafter.
51. This is, it seems to me, incontrovertible evidence that there is a risk to the emotional well-being of S posed by the mother. The mother will have to demonstrate that she accepts the need for, and is capable of, discharging her duty owed to S. The evident lack of insight is in this context on the part of the mother is somewhat alarming and must be addressed by her, and Miss Gissing, in S's interests. On balance, given the history and circumstances I have not suggested (nor has anyone else) that a separate assessment of the mother be undertaken. However, this is an issue which must be addressed on behalf of S by the Children's Guardian (in an addendum report in due course) who will be able to reassure the father of her even handed approach. The kind of behaviour shown by the mother at the contact centre must not be permitted to continue.
52. Finally, as Miss Gissing's report of 28^th September 2012 at paragraph 13 states, there is little (in fact, no) evidence that S's contact with her father is harmful. Indeed, the reality is that it appears that contact is positively beneficial for S. That is confirmed by the most recent session observed by Miss Gissing.
53. This raises the obvious question as to whether it really is necessary any longer given the long history of successful contact, in S's interests, to confine the contact sessions to within the contact centre premises. It was understandable why contact should take place there initially. However, in truth, the contact centre has acted as a convenient and secure hand over [or] drop off point now for many months and, objectively, there seems little justification to require the father not to take S outside for her own entertainment and to render contact more interesting and enjoyable.
54. Indeed, at the last hearing I had envisaged that thereafter the majority of the time would be out of the contact centre and that a more flexible arrangement would have been reached which would, as anybody must know, have been more pleasing to S.
55. In fact, the father was permitted to take S away from the contact centre for only one hour. No problems arose. It is difficult to see why such a short time was thought appropriate. It appears that the justification for one hour only is that a longer time might put S at risk from hearing adverse comments about her mother by the father. This is not a sound basis for restricting time away from the centre. Indeed, there is no evidence or suggestion that the father has engaged in this kind of behaviour in recent months. Had I known that such a restrictive or stifling approach was to be taken I would have spelt out a more flexible arrangement.
56. The father understandably complains that he is being kept to the minute of one hour out of three hours only away from the centre. It appears that S has told the father, on instructions from her mother (one may only guess at the terms of such instruction) that she is not permitted to go into the father's car (because, apparently, he might abduct her). This serves to confirm, if confirmation is needed, the 'toxic' atmosphere in which S and the father are expected to suffer contact contributed to by the mother's attitude towards the father and the question of contact.
57. The question which arises is, pending the assessment and pending the final hearing is what in S's interest would be a suitable balance in respect of time away from the contact centre? As to that, I shall hear from Counsel in a moment. There appears to be no good reason why the father should not be permitted to enjoy interim contact outside the contact centre and, in due course, away completely from it (save perhaps using it as a convenient drop off or collecting venue). This is so particularly if he conducts himself appropriately with S (that is, undertakes to make no inappropriate comments about the mother or her family during contact) and, certainly, if he co-operates with the forthcoming assessment. The purpose of the next hearing will be to review contact following the psychological assessment and the further recommendations, if any, of the Children's Guardian with a view to progressing the matter to final hearing.
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