RE: P (A CHILD) [2001] EWCA Civ 154

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(Mr Recorder McFarlane
(sitting as a deputy High Court Judge))
[2001] EWCA Civ 154Case No B1/2000/3105Venue Royal Courts of Justice, Strand, London WC2, Monday 5th February, 2001
Between
RE: P (A CHILD)
Before
Lord Justice MantellLady Justice HaleTHE APPLICANT FATHER appeared on his own behalfTHE RESPONDENT MOTHER did not appear and was not represented

LORD JUSTICE MANTELL:

Lady

Justice Hale will give the first judgment.

LADY JUSTICE HALE:

[2]This is a father's application in relation to his daughter, R, who was born on 3rd April 1991 and so is now 9 years and 10 months old. R has lived with her mother and her maternal grandmother since her parents separated in December 1992. There have been a great many court proceedings in relation to her since then.[3]The order against which the father wishes to appeal was made by Mr Recorder McFarlane QC on 9th September 2000. He made an order that there should be regular indirect contract between R and her father, and such other contact as may be agreed between the parties in conjunction with the Contact Consultancy Agency. He also ordered that neither party should be permitted to make any further application to the court in respect of R without leave of the court, and he dismissed the father's application to test in court the report of Dr Wozencroft, with a view to the report being struck out and for a new expert, a child psychologist, to be instructed in this matter.[4]The background briefly is this. The parents met in 1981 and married in 1987. R was born in 1991, and it was after that that the relationship began to deteriorate. Indeed the father holds the view (as he put it to us) that he took his wife into hospital for R's birth and he brought out a raving alien; and it is to that that he attributes much, if not all, of the subsequent difficulties. They separated when R was only 20 months old, when the mother went to live with her own mother.[5]The father made an application for a residence order in 1993, which was later withdrawn in favour of a contact application. There were many court appearances thereafter, leading to a contact order made by Her Honour Judge Hindley QC on 22nd July 1998. That provided for alternate weekend staying contact and also for contact over three weeks of the summer holidays and one evening on the intervening weeks, together with indirect contact by cards and letters. Judge Hindley also made an order that neither party should be permitted to make any further application to the court for orders in respect of R without leave of the court.[6]There was a lull after that, during which R had substantial contact with her father in accordance with the order, and we have seen photographs of that contact which appears to have been going extremely well. Then, in September 1999, the mother wrote to the father saying that R did not want to stay with him any more, simply wanted to visit him and if he would not agree to that she would stop contact altogether. Contact stopped thereafter, and in effect that is the last occasion of contact apart from a contact in connection with Dr Wozencroft's report.[7]The father was given permission to issue contact proceedings shortly after that, and he made a contact application to enforce the order of 22nd July 1998. He followed that shortly afterwards with an application for a residence order. He was given permission to make that application and the Official Solicitor was invited to intervene on R's behalf.[8]The Official Solicitor instructed Dr Wozencroft, who is a consultant child, adolescent and family psychiatrist, to make a report. Dr Wozencroft made a report which is dated 10th April 2000. He, among other things in the preparation of that report, took R to visit her father and spent a considerable time with them both together. His conclusion was that as far as he could tell from his conversations with child, her aversion to seeing the father came from her direct experience of him and not from the mother's propaganda. He related her descriptions of her father's character which appeared to him to summarise it to perfection. He found that R was a delightful little girl and that, contrary to the father's belief, she was thriving in her mother's home. He was therefore unequivocal in his recommendation that R should stay with her mother. He thought that the best that the father could initially hope for was infrequent visiting contact. It would take some time to build up fuller contact once more, and that it might help if a young female accompanied R to visit her father. Very sensibly the father applied to withdraw his residence order application in the light of that report. Dr Wozencroft also filed a second addendum report once he had had the opportunity of looking at the medical records.[9]On 25th May 2000 the Official Solicitor made his report. This recommended that R should live with her mother and that contact with her father should be encouraged, but that an independent contact agency should be engaged to assist with this.[10]The Official Solicitor's representative had also interviewed R, and he found her to be a friendly and articulate child who was clearly benefitting from the stability she received from her mother and her grandmother. He reported that she felt ignored by her father, that he would not listen to her and she said it is always "him, him, him". She recalled her father making copious notes about everything she did and said, and could not understand why he did this. She also felt that she had to do the things that he wanted do and that she had no choice. Despite her anxieties, however, she said there were some things that were good and there were times when she enjoy herself, and she spoke fondly about her older half-sister, V, and said that V was good fun. The Official Solicitor's representative recorded that "although she said she does not want to see her father, she is not opposed to contact but said she would not want to stay over. She would only want to stay for a short time, but said this could be built up when she felt comfortable." She was also very anxious about her father wanting her to live with him. There is therefore a considerable degree of consistency between the Official Solicitor's representative's impression of R and Dr Wozencroft's.[11]In June Bracewell J made a residence order in favour of the mother and gave leave to disclose the papers to the Contact Consultancy Agency to effect a contact plan, and gave directions for a final hearing on 8th September.[12]A Mrs Codrington from the Contact Consultancy Agency saw the parents and R. R was adamant that she did not want any overnight staying contact with her father, but she would consider seeing him in a public place for a short period of time. After that she said that she did not want to see her father at all. Furthermore, her father had said to Mrs Codrington that he would prefer not to pursue contact with R rather than have her seeing him under duress, and so she had begun to explore increasing the quantity and quality of indirect contact and reestablishing telephone contact; she also saw the relationship with V as something to be built upon. But Mrs Codrington took the view that R presented as "articulate, intelligent child", displaying "a maturity beyond her years", but also showing "some emotional fragility around the issue". In her view, R's views were "firmly held and should not be disregarded".[13]In August the applicant father applied for the final hearing date to be treated as a further directions hearing, for an opportunity to test in court the report of Dr Wozencroft with a view to its being struck out, and for a subsequent report to be ordered from another independent expert. When the matter came before Mr Recorder McFarlane, however, as

the judge records, in the light of Mrs Codrington's report, the father:

"... no doubt extremely reluctantly but realistically, accepting that that is a correct appraisal of [R]'s current position, he does not seek to urge this court to make any other order for contact other than to allow and direct that the present regime of indirect contact should continue. That would be on the basis that Mrs [P] also agrees that the work with the Contact Consultancy Agency will continue. He therefore does not wish to proceed with any application for direct contact."
[14]That being the case, in the Recorder's view the applications for testing of Dr Wozencroft's report and for the compilation of a further report should not be granted as there was no live issue before the court. It is against that order that the father now wishes to appeal.[15]I should say at once that he has presented his case to this court with great courtesy, with great moderation - bearing in mind the intense feelings that he must have about this whole situation - and succinctly. His basic argument is that he wanted to put Dr Wozencroft's report to the test. He feels that he was in a way outmanoeuvred in that ambition because of the concession that, for the time being, he would not seek anything more than indirect contact with R. Indeed, he says the same to this court. He does not want pressure put upon R to have to see him. He does not want R to have to see any other expert or professional witness. He would not dream of trying to find some best friend to try to persuade R to stand up to her mother. He takes the view, which he has held for a long time, that the source of the problem is R's mother. Therefore what he is asking for is for pressure to put on R's mother, without putting it upon R herself. He believes that it might be possible to do this by holding the threat of a supervision or even ultimately a care order over her head. In his view, R's behaviour is indicative of a risk of significant harm to her.[16]Were there to be evidence to support the father's view that the mother is in some way suffering from a psychiatric illness or a personality disorder which has been the cause of these difficulties, then there might be some merit in the father's applications. However, there is no evidence to support that view at all and there is nothing in the mother's medical records to suggest it. Dr Wozencroft is a qualified psychiatrist. He was unable to detect anything to support that view. There is no power that the court has in those circumstances that it could possibly use in order to put that pressure upon the mother. Furthermore, it could not attempt to do so without R being drawn into the debate. She would be bound to be involved in any further proceedings that there were about her future.[17]In those circumstances, in my view, an appeal in this case would have no prospect of success and I would refuse permission to appeal.[18]It is of course the case that the result of the father's efforts to establish a proper relationship with his daughter is that she knows him, and indeed she knows him very well. That is apparent from the papers that we have. The door will always be open for her to reestablish a relationship with her father. Nor, indeed, is the door closed to him or to V for all time. It is open to either of them to seek the leave of the court at an appropriate time, when they feel that R is less likely to be feeling the way that she is and will not be unduly pressurised by the recommencement of proceedings about her future, to make an application for leave to the court. I would not suggest that this should be done very soon. It is important to continue working with the Contact Consultancy Agency, so far as that is possible. But nevertheless this is a relationship that exists and will no doubt, in due course, turn once more into a full face-to-face relationship. But it may take a very long time. Only time will tell. The door is not closed forever. But there is nothing more that this court can do to assist.

LORD JUSTICE MANTELL: I agree.

ORDER

Application for permission to appeal refused. (Order not part of approved judgment)

Cited in 1 later judgment