C (A Child), Re [2005] EWCA Civ 300

Case No B4/2004/2430[2005] EWCA Civ 300
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YORK COUNTY COURT
(HHJ CLIFFE)
Venue Royal Courts of JusticeDate Wednesday, 16th February 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE POTTER
LORD JUSTICE WALL
C (A CHILD)
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS S SINGLETON FOR THE APPLICANT FATHER
MR A HAJIMITSIS FOR THE APPLICANT MOTHER
J U D G M E N T
Wednesday, 16th February 2005
Between
Applicant FATHERApplicantApplicant MOTHERApplicant

LORD JUSTICE POTTER:

[1]This application for permission to appeal listed with appeal to follow concerns R, a 14 year old boy who suffers from a form of autism on the lower end of the spectrum known as Asperger's Syndrome. He lives with his mother and goes to mainstream school where, although having poor concentration, he has shown himself to be very able in many respects. Unfortunately he has difficulties in maintaining relationships and has few friends. He is not able to express, let alone rationalise, his emotions easily or to empathise with what other people may be thinking or feeling. He tends to occupy a world of his own and has a preoccupation with computers and computer games. He is the subject of a reasonable contact order in respect of contact by his father but has for some time shown hostility to such contact and has refused to have direct contact with his father since May 2004.[2]On 2nd November 2004 His Honour Judge Cliffe dismissed the father's application for a defined contact order under the Children Act 1989 and made an order pursuant to section 91(14) prohibiting the father from making any further application in respect of R until 1st August 2005. He did so on the basis that, having himself spoken to R at an earlier hearing in July 2004 and heard him express vehement opposition to seeing his father, and nothing having changed since, only time and a period of calm and quiet respite were likely to change R's view of the present situation. The judge said that a period of just under 12 months was proportionate in the circumstances and would coincide with R's academic term. He said that the reason he had chosen 1st August 2005 as the relevant date was that it gave a number of months when everyone could be confident that there would be no further application and R would complete the present academic year without wondering if there were going to be further applications. At the same time that left it open to the court and the parties to have the matter brought back for consideration shortly before R's fifteenth birthday ie 3rd September 2005.[3]In a little more detail the background is as follows. The parents met in 1982 and later married, R being born on 3rd September 1990. The family lived in America but moved to York in England when R was almost 5. Following years of marital difficulties the parents divorced in May 2002. Since then R has lived with his mother who now also has a boyfriend living with her. Both parents have parental responsibility for R.[4]R is now 14 and in good physical health. He presents as a tall and well-built young man.[5]The procedural history is as follows. Arrangements for direct contact were in place until August 2002 when contact first broke down. In September 2002 the father made an application for defined contact. A CAFCASS officer, Mr Scatchard, subsequently produced three reports dated February and March 2003 and June 2004. A number of contact orders were made which initially worked to the extent that contact took place at least once a week for nine months, but by May 2004 R was expressing himself firmly to the CAFCASS officer to the effect that he wanted to end contact with his father. There has been no direct, and very little indirect, contact between R and his father since.[6]The father argues that mother has not done all she can to facilitate contact between him and R during this period. However the mother asserts that she has encouraged communication between R and his father. It is her assertion, and on the judge's findings the position, that the cessation of contact is due to R's own determination to refuse to see his father and not to any discouragement on her part.[7]This is frustrating and upsetting to the father, not least because R's resentment and hostility appear to be based on three incidents for which there is either an innocent explanation, or at any rate to which there is no real substance. First, R feels that his father tells him lies. This is based on his perception that on one occasion of contact his father had been drinking before coming to the contact session and that, when taxed, his denial was a lie. Second, he feels that on one occasion he was ignored by his father when he saw him in the centre of the city. The father denies that this is so on the basis that he indeed did not see R on that occasion. Finally, R considers that in an incident, now several years old, his father tried to strangle him, when in reality all the father did was to take hold of his collar.[8]On 29th July 2004 there was a final hearing of the father's application for a defined contact order. In the light of R's age, his firmly expressed views, and lack of biddability, the judge refused to make such an order. He referred to R's strong expressions of view to the effect that he did not wish for any direct contact with his father, but recorded also that R had said he would have no objection to his father sending him an e-mail from time to time.[9]The judge also made clear that R had become frustrated by the continuation of the proceedings and found them tiresome, and that the mother had herself become weary of the process, it not being easy for her to cope with a young man of R's characteristics on a daily basis. He held that, having considered the wishes and feelings of R, it was clear that any change in the present circumstances, in the form of a move from no contact to direct contact, would be harmful to R and impossible to put into practice because of his size, his stage of development, his temperament and his express reluctance to see his father.[10]The judge expressed himself satisfied from the evidence that the father had done no wrong to his son whatsoever and indeed had done everything he could to sustain his relationship with his son and was now regrettably the victim of his son's stage of development and the condition from which he suffers. The judge concluded as follows:
"... I feel, having heard all the evidence, that the proceedings should conclude today because a period of respite all round would be to the advantage of everyone and particularly to [R] because he will feel that there is now no pressure on him to do anything in particular. There is no coercion, there is no likelihood of a Judge or anyone else telling him to do that which he says he is not prepared to do, because I have no doubt that such an approach with this young man would be entirely counterproductive. "
Having recognised how hard that will be for [Mr C] I expressed the view that I hope he will not give up because at the end of my meeting with [R] today he did indicate that he would have no objection to his father sending him the occasional e-mail. He did at the same time say that he saw no need for the telephone, the mobile phone, but notwithstanding that it should be given to him today, because for one thing I have told him that it will be given to him today and if he never uses it or puts it in a drawer, so be it. He will know that it is there if he needs it. He will know that he can e-mail his father if he wants to. "I have received categorical assurances from [Mrs C] that she will encourage contact in the future. I think she is genuine in expressing those sentiments. If she is not then she must realise that she is likely, in the long term, to be the one who suffers most as a result of that because at some stage a boy with [R's] characteristics will react adversely to anyone who is seeking to prevent him doing what he wants to do. I am sure [Mrs C] would not want that to happen. "The Order that I am going to make today is an Order that [Mrs C] shall permit [R] to have reasonable contact with his father. That imposes no obligation to send [R] to see his father or have his father meet him on any particular day or at any particular time because as I have indicated in my view it would be impossible to enforce. It would be something that [Mrs C] could not achieve and Mr Scatchard has already in his evidence made reference to [Mrs C] in the past having promised to do things which she could not then deliver. "But the Order does require her to leave open channels of communication by telephone, my e-mail, by letter and indeed by direct contact if that is what [R] wishes, so that no obstacle is put in his way and so that in the fullness of time, one hopes, that he himself will respond to the e-mails or he will telephone his father or, who knows, one day he may knock on his father's door. "All of this, as I say, is little comfort to [Mr C] but in my view his quest for contact so far over a period of almost two years can been beyond criticism and I say again I hope he will not give up on the situation."[11]Following those proceedings all contact, both direct and indirect, ceased. The father sent e-mails and letters and attempted to contact R by his mobile phone without success. The father made application for the following relief: namely, that the reasonable contact order be set aside and a defined contact order be made; it also requested a specific issue order in relation to which the husband appeared to contemplate an order of some kind preventing anyone, particularly the wife's boyfriend, from interfering with the collection and return of his son at defined contact sessions; an order that R be joined in the proceedings; that the National Youth Advocacy Service (NYAS) be appointed as his guardian; leave for the court papers to be shared with NYAS; leave for NYAS to consult an expert in Asperger's Syndrome sharing the court papers with them as necessary; and an order that the proceedings be transferred from the York County Court to the High Court because of the complexities of the case involving Asperger's Syndrome and the intractable hostility of the wife.[12]The father appeared in person, assisted by a McKenzie friend, Mr Mackay, though before this court he has the advantage of being represented by Ms Singleton of counsel. We have the transcript of the proceedings below before us. To a considerable extent the submissions of the father were, in effect, an appeal against the judge's earlier order in the sense that he submitted that the difficulties in his relationship with his son were due to the mother's hostility to contact and her influence on R's views as to which the judge had made earlier findings that this was not the case.[13]However, he also submitted that NYAS should be appointed guardian and an expert on Asperger's Syndrome be involved on the basis that all contact had now ceased and the court had a duty to consider such requests as a last opportunity for R to have an ongoing relationship with both parents. He made the point that R's condition was one which no one, including the court, truly understood, and that by the involvement of an expert in the condition a pattern of contact and a way forward might be found before the position became irretrievably set.[14]In resisting the application, Mr Brown, for the mother, pointed to the fact that R was firm in his opposition and that nothing had changed since the July hearing as indeed the father conceded. As to the need or desirability to appoint a guardian he relied on paragraphs 3.2 and 3.4 of the practice direction of the President. He submitted that this was a mother who was representing the views of the child and that the child was also plainly making his views and wishes known both to CAFCASS, as the court reporter, and to the judge. In those circumstances the appointment of a guardian was unnecessary, would introduce delay, and would add to the wearisome nature of the proceedings spoken to by the mother and R. He also submitted that it would be wrong to transfer the matter to the High Court as it would break the desirable judicial continuity maintained by retaining it before the judge. Mr Brown also, and without prior notice to the father, invited the judge to consider whether an order under section 91(14) was now appropriate as the issues being canvassed were, in effect, simply an appeal against the earlier decision.[15]The judge essentially accepted the submissions of Mr Brown. His reasons for dismissing the application, shortly stated, were that nothing had changed since the end of July; it remained a case where the mother was not hostile or resistant to contact for her own reasons, however it was clear that R remained very resistant to contact. He stated:
"[R] is no longer a child... In his meeting with me and [the CAFCASS officer] he expressed himself very directly, very bluntly... He made it perfectly clear that he did not want contact with his father at that time... The way in which [R] expresses himself... is in part a manifestation of his condition but it is clear that he remains very resistant to contact."
[16]He went on to say that nothing could be achieved by granting the orders sought. On the contrary the relief sought was likely to be counterproductive if granted. He said:
"I cannot see any way forward today by way of making further orders; that would have in my view entirely the opposite effect of that desired by [the father]."
He went on to say that since the sad fact of the matter was that R was entirely resistant to contact for the time being nothing would be achieved either by transferring the matter to the High Court or by involving NYAS.[17]Finally, he went on to grant a section 91(14) order against the appellant on the grounds rehearsed by me at the beginning of this judgment. By his notice of appeal on grounds drafted by himself and by articulate and, in the main, well directed submissions in his skeleton argument, the father raised a number of points of criticism in relation to the judge's approach. Those submissions, as adopted and modified by Ms Singleton who now represents him, are essentially as follows:[18](i) All were agreed that it was in principle in the best interests of R that his relationship with his father should be rehabilitated and developed. Although on 29th July 2004 an order had only been made for reasonable contact because of the difficulties arising from the attitude of R, it had been hoped, if not expected, that indirect contact might lead to bridge building rather than burning of boats.[19](ii) Since it did not, but in fact had led to a total cessation of contact, imaginative and proactive steps were necessary if permanent alienation was to be avoided.[20](iii) Whereas the judge plainly thought, having spoken to R, that he was a mature and sufficiently articulate boy, well capable of making his views clear and sticking to them, he should have had regard to the fact that neither he nor the CAFCASS officer, who himself so stated, had the experience or expertise necessary to know whether R should be taken at his word or, suitably handled by someone expert in his condition, might be persuaded to a different view.[21](iv) The nature of R's disorder makes it imperative that if his relationship with his father is repairable, the chance of any repair diminishes rather than improves if things are left as they are. His adverse reaction to his father for reasons which are unmerited and insubstantial by any order standards and which would be amenable to reason in an ordinary child are, if they have not become so already, likely to become permanently ingrained.[22](v) In these circumstances, rather than relying upon his own instinctive, but from the expert point of view uninformed, reaction to R's expressed hostility, and rather than describing and treating him as a young man with firm views, the judge should have been prepared to call in an expert as a cross check upon his conclusion and as an adviser as to what, if any, steps might be taken to disperse R's misconceptions and change his apparently intransigent stance. That person could not suitably be the CAFCASS officer because of his own acknowledged lack of expertise.[23](vi) The judge was, in any event, wrong to make an order debarring further applications for a substantial period pursuant to section 91(14). There are two reasons why it is submitted that that was so; the first of principle and the second as a matter of practicality. First, submits Ms Singleton, the order was made contrary to the guidelines in relation to section 91(14) articulated by Butler-Sloss LJ in Re P (Section 91(14) Guidelines) (Residence and ReligiousHeritage) [1999] 2 FLR 592-3, and in particular guideline 5 which states that the discretionary power to restrict applications to the court under that provision is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable application. Reliance is also placed on the dicta of the President in Re C (Prohibition onFurther Applications) [2002] EWCA Civ 292 at paragraph 15, in which it was stated that it was wrong in principle, except in exceptional cases, to place a litigant in person in the position, at short notice, of an order that bars him from dealing with any aspect of the case relating to his children, particularly relating to contact.[24]Second, in relation to the practical implications of the order made, the judge was rightly concerned to minimise the disturbing influence of any application upon R's academic performance. On that basis, to postpone consideration of the issues until R's fifteenth birthday would not only be likely to make his opposition to contact more ingrained, but it would postpone the disturbing influence of such applications into the beginning of his GCSE year which, on any view, would not be desirable.[25]In broad terms I would accept all those submissions.[26]In the event, the position on the hearing of this application has eased as a result of the praiseworthy concession made by the mother through Mr Hajimitsis that she is agreeable to the discharge of the section 91(14) direction to R being joined as a party and NYAS being invited to accept appointment as a guardian. It is her submission that it would be preferable to defer identification and instruction of an appropriate expert until the matter has been considered by NYAS.[27]Before proceeding to consideration of the appropriate directions to take the matter forward, I feel I should say this in relation to the substance of the appeal. It seems to me that the judge was faced with a difficult decision and plainly regretted the conclusion to which he felt driven. However, it also seems to me that he should have recognised the disadvantages which he was under in relation to his assessment of the attitude of R and the means by which efforts might be made to overcome it. In my view, where there is an application of this kind by a devoted and deserving parent, of whose conduct no reasonable criticism can be made, and the child concerned evinces dislike or distrust of the parent for no explicable reason other than it is a product of a psychiatric disorder present in the child, it must, in principle, be wrong for the judge to proceed to make an order, the effect of which is to cut off contact with that parent, without first obtaining the guidance of an expert in the effects of that disorder with a view to obtaining advice on the best way of persuading the child to resume a relationship with that parent.[28]In this case it was the assessment of the judge that R was adamant in his view and that it was desirable to secure to him a period of peace from involvement in the attempts of the father to have contact. However I do not consider that he was right to feel confident that that was the best way forward, let alone that he was making the right decision in R's long-term interests to have a relationship with his father, without involving an expert in autistic spectrum disorders to see and assess R and to advise on the desirability, feasibility, nature and timing of any attempts to persuade him to resume that relationship.[29]So far as the making of an order under section 91(14) was concerned, had the judge properly formed the view to which he came on a fully informed basis, he plainly had jurisdiction to make the order which he did in respect of the limited period to which it applied in a situation where there was no reason to expect any change meanwhile. I would not have been inclined to reverse the decision of the judge in that respect simply on the ground that the father was conducting his case in person, and it had no formal prior notice that such an order was in contemplation. It seems to me that the judge's error was one of overall approach for the reasons I have already given. It is unnecessary to say any more on this aspect in the light of the concession by the mother that the section 91(14) direction should be reversed.[30]Turning now to the question of directions. Despite the concessions of the mother on this appeal, it appeared to me, at first sight, that the case was not one in which R now needs to be separately represented. That is because I take at face value the mother's assertion, and the judge's assessment, that she is not opposed to the proposition that it is in R's long-term interest to have a meaningful relationship with his father and that she will cooperate in one last effort to find a way forward to that end, including attempts to persuade R and to report faithfully on his attitude and reactions.[31]However, I have been persuaded by the parties that this is indeed a case where R should be separately represented. The parties have made preliminary enquiries and it appears that NYAS are willing to become involved. It is, of course, the position under the President's practice direction that in a case of this kind requests should first be made of CAFCASS Legal to provide a guardian and it is important that such direction be followed save in exceptional circumstances.[32]However, there are two reasons why it seems to me that such a course is not practicable in this exceptional case. First, it is clear that R has lost faith in Mr Scatchard, through no fault on his part, seeing him as a person complicit in making him do what he does not want to do. He is also resentful of his being a person in part responsible for the label of 'Asperger's' which R has had attached to his case, but which he does not accept.[33]Second, in accordance with paragraph 5(1) of the practice direction we granted to the parties time to make efforts to contact CAFCASS in order to indicate whether or not they wished, or were prepared, to undertake the role of guardian. Unfortunately, it has not been possible to make that contact. We have, however, been informed by counsel, and I accept, that it is the experience both of counsel and of experienced solicitors, that in relation to requests of that kind it is the custom of CAFCASS to appoint an individual officer in relation to the guardianship who is already the officer concerned in the proceedings. In those circumstances it seems to me that under section 5.2 of the President's direction this is a case where there is reason why the appointment of a CAFCASS officer is not appropriate.[34]Finally, R has in fact made a plea to his mother for some person to see him, to listen to him, and to appreciate his point of view. In those circumstances I am satisfied that it is a case where a guardian should be appointed and that NYAS should be that guardian.[35]So far as the request for transfer to the High Court is concerned, it does not seem to me that this is a case necessary for transfer to the High Court. It has been submitted on behalf of the father, however, that in this particular case he has lost confidence in the return of the matter to the judge, despite the desirability, in ordinary circumstances, for continuity of proceedings.[36]In the light of the acute concerns of the parties in this respect, while I do not consider this is a case for transfer to the High Court, it is a case where those concerns can be met by a direction that in relation to any further applications the matter should be heard by another judge than Judge Cliffe. Accordingly, I would grant permission to appeal and allow the appeal of the husband against the making of the section 91(14) order.[37]I would also set aside the order of the judge dismissing the application and make the following directions for its disposal, namely that being satisfied pursuant to 5.2 of the President's direction there is a special reason for the appointment of a guardian other than a CAFCASS officer, R should be joined as party to the proceedings and NYAS be appointed as his guardian; the mother's solicitors should make the court papers available to NYAS within 7 days for the purpose of producing a report; application to transfer the matter to the High Court is refused. I would leave the question of any additional directions to discussion with the parties following the judgment of Wall LJ.

LORD JUSTICE WALL: I agree with my Lord's judgment and with the orders which he proposes. He has covered the ground very fully. I add a word only on the question of separate representation. When I first read the papers for this appeal my preliminary view, like my Lord, was that it was not necessary for R to be separately represented. What seemed to me, at first blush, to be required was the instruction of an expert in the field of autistic spectrum disorders to advise the parties and the court on the way forward and how contact between R and his father could be restored.

[39]I have, however, been persuaded by the able submissions of both counsel that this is a case in which separate representation for R by NYAS is appropriate. I reach that conclusion for three main reasons.[40]Firstly, I am satisfied that Mr Scatchard, the CAFCASS reporting officer, has reached the limit of what he can achieve with R, and that further intervention by CAFCASS might well prove counterproductive.[41]Secondly, both parties agree that the immediate instruction of an expert in the field of autistic spectrum disorder might well antagonise R who does not accept the conclusions of the consultant clinical psychologist who reported on him in January 2003. What R plainly needs, therefore, is skilled social work intervention to act as the voice which listens to R, something R has made clear he wants, and which can mediate between R and his father. NYAS will also, of course, be in a position in due course to seek expert advice on R's behalf.[42]Thirdly, NYAS will be in an excellent position to identify and obtain that expert advice once it has investigated and become familiar with the papers.[43]I am therefore satisfied that this is a case within the practice direction in which separate representation is necessary, but in which it would not be appropriate for that representation to be by CAFCASS Legal. This leaves the way open to the court to appoint an alternative guardian and, as I have already indicated, this seems to me, on the material available to this court, a case eminently suitable for the skills for which NYAS is well known. For these reasons therefore I respectfully adopt the course set out by my Lord.

ORDER

permission to appeal granted; section 91(14) order made; order of judge dismissing appeal set aside; R to be joined as a party to proceedings and NYAS to be appointed his guardian; mother's solicitors to make papers available to NYAS within 7 days; matter to be listed in York County Court on first available date after 1st April; application to transfer matter to High Court refused.