F (a child) [2006] EWCA Civ 1426

[2006] EWCA Civ 1426

Case No B4/2006/1044/PTA + A

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION

Venue LEEDS DISTRICT REGISTRY

Lower court case number: WF04P00094 & LS05C06258

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 1 November 2006

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

LORD JUSTICE THORPE

LORD JUSTICE WILSON

Between

F (A CHILD)Appellant

F (A CHILD)

Ms Sally Bradley QC and Ms Joanna Geddes (instructed by Green Williamson Solicitors) for Appellant

Mr Anthony Kirk QC and Ms Diana Lessing (instructed by Chadwick Lawrence Solicitors) for Respondent

Mr Anthony Hayden QC and Mr James Hargan (instructed by The John Wood Partnership) for child by Children's Guardian, CAFCASS

Ms Kay Boulton (Guardian Ad Litem)

Hearing Hearing dates : 9 October 2006

Judgment

LORD PHILLIPS, CJ :

[1]This is an application by B (‘the mother’) for permission to appeal against an order made by the President, Sir Mark Potter, on 22 March 2006. That Order granted to P, the father, limited and carefully defined indirect contact with their daughter, F. Having read the skeleton arguments it seemed to us that the appeal was both important and that it had a reasonable prospect of success and, accordingly, we gave permission to appeal at the beginning of the hearing. The facts

[2]The relationship between the father and the mother began in 1988. F was born in 1997. The relationship came to an end in May 2004 and neither the mother nor F has had any contact with the father since July of that year.

[3]The course of the relationship between 1988 and 2004 was turbulent. The father has a personality disorder that results in his giving way to serious and uncontrollable violence. In the periods when they were together, that violence was inflicted on the mother. They were however often apart, sometimes when the father was in prison – his longest sentence was one of 4 ½ years imposed in October 1998 for involvement in the importation of drugs- and sometimes when the mother left, with F, for a period because she could take the violence no longer. The last occasion that they lived together was in September 2001, but there was intermittent contact after that until May 2004. On at least five occasions the mother sought and obtained injunctions against the father on the grounds of domestic violence.

[4]The father has at all times loved and shown affection for F, as have the father’s parents. She spent happy holidays in the latter’s caravan. While F frequently witnessed the violence, it was never directed towards her.

[5]Care proceedings in respect of F were instituted in July 2002. Ms K Boulton, a highly qualified and experienced CAFCASS Children’s Guardian, was appointed F’s Guardian in those proceedings. The mother and F were placed in a refuge in Headingly. The address was inadvertently disclosed to the father by a member of the Social Security staff, so that she and F had to be moved again.

[6]On 26 February 2003 the care proceedings were concluded. HHJ Fricker QC granted a Parental Responsibility Order to the father. He made a defined Contact Order, designed to ensure that the contact arrangements would not require the father and mother to meet. He also made a Non-molestation Order, to protect the mother. The father disregarded the terms of both these Orders. He insisted on making direct contact with the mother in order to arrange contact, making frequent threats of violence to the mother, and this situation only came to an end when he was arrested and remanded in custody on drugs charges.

[7]On 2 June 2004 the mother obtained a Prohibited Steps Order preventing the father from removing F from the mother except at times agreed between solicitors.

[8]Committal Proceedings were then brought against the father and on 21 July 2004 District Judge Lord found proved 68 breaches of the Orders made on 26 February and imposed a sentence of 4 months imprisonment.

[9]With the help of the Police Domestic Violence Unit the mother and F moved to new accommodation, unknown to the father, and assumed fresh identities. The father is desolated that he has lost contact with F. He is bitterly angry with the mother for being responsible for this. He has left no stone unturned in efforts to track down the mother and F. His efforts have included suborning a civil servant to gain access to computer information in order to help him discover the mother’s whereabouts, paying a company to attempt to trace the mother by use of the internet and harassing the mother’s parents, for which he received a 5 month prison sentence. The mother and F have moved no less than ten times in recent years in order to escape the father. The proceedings below

[10]The facts set out above provide the background to cross-applications in private law proceedings, which ultimately came before the President on 13 February 2006 and which led to a 6 day hearing. Ms Boulton was appointed Guardian ad litem of F because of her previous involvement as Guardian in the care proceedings. The father applied for contact, which was opposed by the mother and Ms Boulton. The mother applied for an order terminating the father’s parental responsibility, and for an Order under s. 91(14) of the Children Act 1989 preventing the father from making further applications to the court.

[11]The evidence received by the President included oral evidence by video link from the mother, three written statements and oral evidence from the father, a psychiatric report on the father, prepared for the purpose of the earlier care proceedings, and a lengthy report and oral evidence from the Guardian, Ms Boulton. He also had ‘closed material’, in the form of a confidential statement by the mother that was, by agreement, disclosed to leading counsel for the father on terms that he would not disclose the contents to his client.

[12]The President granted the mother’s application that Judge Fricker’s Order giving parental responsibility to the father be revoked. He also accepted that it was appropriate to make an Order under section 91(4) of the Children Act 1989 that the father should not make any further application without the permission of the court. There is no appeal against these Orders.

[13]So far as F was concerned, the President rejected the father’s application for direct contact.

[14]So far as indirect contact was concerned, the President accepted a suggestion made in the course of the proceedings by Anthony Kirk QC, counsel for the father, that certain specified communications between the father and F should be sent to and passed on by a neutral third party who could vet the contents in order to ensure that they were appropriate. In his judgment, which was reserved, he said that, following the end of the hearing, he had been able to make suitable arrangements with CAFCASS Legal in London to this end. The President made an Order for indirect contact in the following form: “1. The father is to be permitted to send to F:-(a) a birthday card together with a modest gift, or modest sum of money, in time for her birthday on 3 April each year;

(b) a card in early October each year to co-incide with his own birthday;

(c) a card, together with a gift or some money, in advance of Christmas and for that occasion; 2. The father is likewise permitted to enclose with these, similar cards, modest gifts and/or money from the paternal grandfather on each such occasion; the father will also ensure that any communication received from either F or from the mother under paragraphs 3 and/or 4 are passed on to the paternal grandfather; 3. In accordance with Paragraph 2(c) of this Order, the mother will:- (a) ensure that F receives these cards, gifts or money; and (b) encourage her to send a little note of thanks, or anything else she may want to send by way of acknowledgment; 4. At the end of each school year, during the course of July or early August, the mother will provide the father with a written report on F’s progress both at school in terms of academic achievement and elsewhere. 5. All such communications as are referred to in paragraphs 1 to 4 inclusive are to be sent in unsealed envelopes to:- The Service Manager The High Court Team CAFCASS 8th Floor St Quay Plaza 3 189 Marsh Wall London EC14 9SH - with a discretion to him/her to decline to send on any item if he/she considers it inappropriate.” (a) a birthday card together with a modest gift, or modest sum of money, in time for her birthday on 3 April each year; (b) a card in early October each year to co-incide with his own birthday; (c) a card, together with a gift or some money, in advance of Christmas and for that occasion; (a) ensure that F receives these cards, gifts or money; and (b) encourage her to send a little note of thanks, or anything else she may want to send by way of acknowledgment; The Service Manager The High Court Team CAFCASS 8th Floor St Quay Plaza 3 189 Marsh Wall London EC14 9SH The reasons for the President’s orders

[15]By the end of the proceedings the President had concluded that the relationship between mother and father was at an end and that the father’s anger towards the mother and propensity to violence were such that the mother would be seriously at risk if the father discovered where she lived. It was of paramount importance that all risk of his doing so should be avoided. Thus, in rejecting the father’s application for direct contact the President observed that there were:

“no practical proposals for contact of any kind which would guard against the intention, which I have no doubt the father retains, of gaining knowledge of the whereabouts of the mother and F and restoring contact by whatever means he can … .”

[16]In these circumstances the revocation of the Order giving the father parental responsibility naturally followed. The President considered that the father would, if permitted, inevitably make further applications to the court in respect of F and that this would have an adverse effect on both mother and F. For this reason he made the section 91(14) Order.

[17]It is necessary to consider the President’s reasons for ordering indirect contact in more detail, for this is the only part of his Order which remains in issue.

[18]It is clear from his judgment that the President was strongly influenced by the evidence of the Guardian ad litem. He recorded that in the care proceedings the Guardian had initially advised that it was in F’s interests that she should maintain continued direct contact with the father and with his family. He recorded that the Guardian, in a Report made in May 2005 changed her mind about this, because of the “acrimonious and hostile feelings between her parents, and their impact upon her”, but that she recommended that “indirect contact with the paternal family should continue, as long as it could be managed in a safe way and does not compromise F’s current situation”. She expressed the same view in a Report in October 2005. The President stated (paragraph 110 of his judgment) that the Guardian had since changed her view “because she did not think that F’s location could be safeguarded” if indirect contact were permitted.

[19]The passage setting out the President’s conclusions in relation to indirect contact is relatively short, and I shall set it out in full:

“124. Having come to that conclusion about any form of direct contact, I turn to the great concern of the father that, even if he is to be cut off from all such contact, he should be able to keep open a line of communication with F as a means of preserving the link between them until she is mature enough to form her own view as to whether or not she wishes to re-establish contact with him. 125. In his final submissions, Mr Kirk advanced the proposal that any such communications could and should be sent to and, passed on by, a neutral third party who would vet the contents in order to ensure that they were appropriate. 126. In my view, subject to satisfactory arrangements, and in this case that means arrangements designed to protect the anonymity and whereabouts of the mother and F, that appears to be an appropriate proposal which achieves a proper balance between the father’s Article 8 rights and the paramount consideration of F’s welfare. The objections of the mother were not based upon her view that such communications would in themselves be harmful or unduly unsettling for F, but advanced for the following reasons. She was fearful of the father and his desire to re-establish direct contact. In that respect, first, she did not see how arrangements could be made logistically which would be proof against a determined effort by the father to track them down to their present whereabouts. Second, she considered that the steps proposed were for the benefit of P and not for F. Third, she considered that such measures would merely encourage the father and increase his feelings of frustration in relation to increased contact with F. He would soon be making further applications which would disturb the atmosphere and security of their now secure position. 127. The Guardian’s concerns were essentially the same save that, in relation to the second consideration, although F had accepted her position with a considerable degree of equanimity, the Guardian was clear that it would be of long-term benefit to keep alive a positive memory of the father and the paternal family. 128. I agree. At the same time, the father must realise that this is not as a stepping-stone to increased contact. It is simply as a reassurance that happy memories survive and that, one day, if and when F wishes to resume contact, she will have an up-to-date reassurance of a welcome. At the time the matter was before me, it appeared that there could be no local facility available or suitable to act as a staging post for such communications or a vetting process in respect of them. However, I have been able to make suitable arrangements with CAFCASS Legal in London to this end. I am prepared to order indirect contact by the means set out in paragraph 112 above at (i), (iii) and (iv). As to (ii), I am not prepared to provide for any progress reports to be provided direct from F’s school. However I am prepared to order that, at the end of the school year in July, the mother should herself write a brief report upon F’s general progress, including her progress at school. 129. I therefore propose to order that there be indirect contact between F and her father as above stated in relation to which the order should provide that “All items of indirect contact to be sent unsealed via the Service Manager, the High Court Team, CAFCASS, 8th Floor, St Quay Plaza 3, 189 Marsh Wall, London E14 9SH with discretion to him to decline to send on any item if he considers it inappropriate”

I would also incorporate in the order that the father should be permitted to enclose with his own communications similar cards and gifts from the paternal grandfather and that the father should pass on to the paternal grandfather the contents of the mother’s report on F’s progress.” “All items of indirect contact to be sent unsealed via the Service Manager, the High Court Team, CAFCASS, 8th Floor, St Quay Plaza 3, 189 Marsh Wall, London E14 9SH with discretion to him to decline to send on any item if he considers it inappropriate” The Grounds of Appeal

[20]The Grounds of Appeal dated 2 May 2006 focussed almost exclusively on the risk that the indirect contact ordered might enable the father to trace the mother.

[21]The skeleton argument drafted by Ms Sally Bradley QC and Ms Joanna Geddes on behalf of the mother repeated the contention that the President’s Order would carry an unacceptable risk that the father might succeed in tracing the whereabouts of the mother. It observed:

“Having heard evidence that there was no safe or watertight facility to transmit indirect contact the President made independent enquiries and identified CAFCASS Legal as being suitable. The exact details and the way in which heightened security could be guaranteed were not forthcoming.”

The skeleton contended that the President erred in not attaching weight to the fears of the Guardian about safety.

[22]Interwoven with the submissions referred to above it is possible to trace a broader theme. The skeleton suggested that the Order made for indirect contact was inconsistent with the other Orders made by the President. The other Orders stripped the father of his status as a parent:

“… The President failed to appreciate that an indirect contact order was not a lesser form of contact. It was an equally potent link between parent and child and the arguments which are marshalled against direct contact often (and in particular in this case) have an equal validity when looked at in the context of indirect contact…In short the Order was wrong; it could not … be said to be in F’s best interests. It could indeed be argued that it was inimical to her welfare. …”

[23]The skeleton failed, however, to spell out clearly the nature of this submission, for it reverted to the danger that the father would be able to use the arrangements made for indirect contact to trace the whereabouts of the mother and F.

[24]The skeleton argument prepared by Mr Hayden QC and Mr Hargan on behalf of the Guardian stated that “None of the Learned Judge’s findings are contested”.

[25]It supported the mother’s case, which it summarised as follows:

“The Mother frames her application on the premises that: (i) Having properly and cogently identified the factual matrix of the evidence, the President then failed to analyse a regime of contact that was consistent with his own factual findings. (ii) The extent and nature of the indirect contact arrangements were also inconsistent with the reasoning that underpinned the President’s orders revoking the father’s parental responsibility (the Section 4 (3) application) and prohibiting future applications (without leave) pursuant to Section 91 (14) of the Children Act 1989. (iii) In rejecting the Guardian ad litem’s ultimate conclusion that no order for either direct or indirect contact should be made the President failed sufficiently to articulate his reasons for departing from her recommendations.” (i) Having properly and cogently identified the factual matrix of the evidence, the President then failed to analyse a regime of contact that was consistent with his own factual findings. (ii) The extent and nature of the indirect contact arrangements were also inconsistent with the reasoning that underpinned the President’s orders revoking the father’s parental responsibility (the Section 4 (3) application) and prohibiting future applications (without leave) pursuant to Section 91 (14) of the Children Act 1989. (iii) In rejecting the Guardian ad litem’s ultimate conclusion that no order for either direct or indirect contact should be made the President failed sufficiently to articulate his reasons for departing from her recommendations.”

[26]Like the skeleton argument on behalf of the mother, that on behalf of the Guardian followed two themes: the allegation that the indirect contact ordered carried a risk that the father would somehow use it to locate the mother and a broader theme. In this instance however the broader scheme was spelt out:

“… The nature and frequency of the indirect contact has the effect, in our submission, of immediately resurrecting a dormant (though not dead) relationship at a stage in F’s life when that is inconsistent with the priority of ensuring the safety of her mother and through that F’s own security. In seeking to achieve “positive memories of the father” the contact regime in fact creates a structure for reviving and developing the relationship in the present.” … “The Guardian’s primary concern was in any event for the security of the placement in a broader welfare context, not merely confined to the danger of the father discovering the placement. At the time of the hearing F was nearly 9 years of age. Her young life had been scarred by exposure to domestic violence, high levels of parental acrimony and repeated changes of address. She was in desperate need for space to recover what was left of her childhood. The mother’s own peace of mind as F’s sole carer was also crucial. F’s life was also highly artificial, living with an assumed identity. In the Guardian’s analysis, the intrusion of the father, even by indirect contact, into this delicate situation was likely to unsettle F. The Guardian was convinced that F’s need to experience a stable safe home life where her physical emotional and educational needs could be met on a consistent basis overwhelmed any need she might have for a relationship with her father.”

Conclusions

[27]I propose to deal both with the contention that the indirect contact ordered by the President carries an unacceptable risk that it will enable the father to trace the mother and the broader theme.

[28]The President’s judgment shows that he was crucially aware of the paramount necessity of preventing the father from tracing the whereabouts of the mother. The President stated that he had been able to make “suitable arrangements” with CAFCASS Legal in London to ensure that this did not occur. The President provided to the parties his judgment in draft on 13 March 2006 and handed it down at a hearing attended by counsel on 22 March. He invited the parties to draw his attention to any issues that they might wish to raise in relation to the draft. We asked counsel why, if they were not satisfied that CAFCASS Legal would provide a secure conduit for the indirect contact ordered, they did not raise this with the President. They replied that they had not thought it appropriate to do so.

[29]In the skeleton argument filed on behalf of the Guardian, it is stated:

“As she said in her evidence, she had approached CAFCASS Legal before, in other cases where she had considered indirect contact to be appropriate, to see whether they were prepared to act as a conduit or post box for indirect contact and had been informed that they did not have the resources or personnel to carry out such a task.”

In the light of this I do not consider it surprising that the President checked to see whether this was still the position. He clearly found that it was not.

[30]The skeleton continues:

“She was concerned that if such indirect contact were to continue for a number of years, likely changes in personnel would undermine the safety of transmission which the father would be quick to exploit.”

If the Guardian had such a fear, I cannot understand why this was not raised with the President when his judgment was provided in draft. It is inappropriate for counsel to invite this Court to proceed on an assumption that the arrangements with CAFCASS Legal made by the President are not satisfactory to achieve the object for which he made those arrangements, namely that indirect contact should not enable the father to trace the mother. I am certainly not prepared to make any such assumption. On the contrary, I would assume that the President has, as he stated, made “suitable arrangements”. Accordingly I reject this ground of appeal. I turn to the broader point.

[31]The submission that the Guardian was opposed to indirect contact because, by keeping the relationship between F and her father alive, it would unsettle F is manifestly contrary to the President’s understanding of the Guardian’s attitude to indirect contact. We were concerned to explore with counsel for the mother and the Guardian what the basis was for asserting that the President had so fundamentally misunderstood the evidence before him. They were unable to persuade me that there was any such basis.

[32]On 3 May 2005 the Guardian advised that indirect contact with the paternal family should continue as long as it could be managed in a safe way and would not compromise F’s current situation. On 7 October 2005 the Guardian recommended that “indirect contact with the family should continue and that this can safely be facilitated through the maternal grandparents. I recommend that the court make an order to this effect”. Plainly, up to October 2005, the Guardian was of the opinion that it would be beneficial to F that her relationship with her father and his family should be continued by means of indirect contact.

[33]What changed between that date and the date of the Guardian’s 3rd Report of 6 February 2006? The Guardian had sight of the ‘closed material’. I cannot, of course, disclose the nature of this. What I can say, however, is that while it bears on the degree of risk to the mother should the father discover her whereabouts, it has no impact on the emotional needs of F, so far as the desirability of indirect contact with her father is concerned.

[34]After seeing the closed material, the Guardian summarised her reasons for changing her mind as to the desirability of indirect contact:

“3. The safety and protection of the child is paramount, and, in light of the “private information”, I now feel that any form of contact for F with her paternal family, be it direct or indirect, is too high a risk to take. Indirect contact with her extended family could act as a conduit. There is always the risk, however slight, of information being inadvertently revealed, which could lead to knowledge of the family’s whereabouts. 4. In other circumstances, indirect contact could be viewed as offering F reassurance that her family have not forgotten her. There is a risk, however, that this could lead to more contact developing over the years, either through Mr I [paternal grandfather] pursuing direct contact as an objective, or through F, as she grows older, wishing for more contact. It could create a need in her to want to develop her relationships with her paternal family and have more than just indirect contact. This could result in her making her own decisions about contact before she is old enough to understand the risks to herself and to her mother. I believe that these are all realistic possibilities as F previously enjoyed positive relationships with her father, her grandfather and her paternal family in general. 5. There is also the possibility that the continuation of indirect contact could seek to increase F’s fear and worry about her situation, particularly if she is constantly having to move, as seems likely unless the family can be given complete anonymity. 6. Mr P is a resourceful person and I do not think that he will cease in his attempts to find the family, particularly as his suspicions will have been aroused by the manner in which Mrs B left the area and the unusual conduct of these proceedings. I consider that he is quite capable of putting pressure on anyone who has even the slightest link with F, be it his own family or Mrs B’s family. 7. In most instances, indirect contact would be in the child’s interests, and in my first report I concluded “It is my view that indirect contact with the paternal family should continue as long as it can be managed in a safe way and does not compromise F’s current situation.” (Bundle 1, C40). It is my view now, in light of what I perceive as an unacceptable level of risk to F’s safety and welfare, that even limited indirect contact with F’s paternal grandfather cannot be managed in a safe way. In assessing now the child’s need for security, stability, quality of life and her need for protection, I consider that every avenue to F has to be closed down, and this has to include any indirect contact with Mr I or other members of F’s extended family.”

[35]Although this refers to the possibility that the continuation of indirect contact could seek to increase F’s fear and worry about her situation, the focus of this passage is unquestionably on the risk that indirect contact may enable the father to trace the whereabouts of the mother and F.

[36]We were provided with a note made by junior counsel of the oral evidence given by the Guardian. Once again this focuses on the risk that indirect contact might enable the father to trace the mother:

“I now feel that there can be no indirect contact because F’s location cannot be let out and there would always be a danger of something being let slip.”

[37]We were provided with copies of the final submissions of counsel, which were placed before the President in written form. These contain no hint that the case being made against indirect contact was founded on anything other than apprehension that such contact might enable the father to trace the mother and F.

[38]My conclusion is that the President was amply justified, on the evidence before him and the submissions made in relation to that evidence, in finding that the Guardian favoured indirect contact in principle and had only “changed her view because she did not think that F’s location could be safeguarded” if such contact were permitted.

[39]Mr Hayden, in his skeleton argument and his oral submissions, has suggested that the President misunderstood the Guardian’s views. There is, however, no evidence to support this submission. This appeal cannot be allowed simply on the assertion of counsel. If the Guardian considered that the President had misrepresented her views, I cannot understand why she did not accept his invitation to raise this matter in response to the invitation that he made when he handed down his judgment in draft. Alternatively, she could have applied to us to receive additional evidence on this matter. She did not do so.

[40]The paramount concern of this court must be for F’s welfare. This does not mean, however, that the need for evidence can be swept aside, to be replaced by assertions by counsel. I can see no valid ground for attacking the reasoning of the President, based as it was on the evidence and submissions before him. I would dismiss this appeal.

Lord Justice Thorpe:

[41]I agree that this appeal should be dismissed for the reasons given by my Lord the Lord Chief Justice.

[42]The resolution of this appeal has not been either easy or straightforward. Both Mrs Bradley and Mr Hayden contended before us that the President, after a trial at which the evidence had established that no mechanism for the transmission of communications between father and child could be safe, had himself crafted a mechanism with the aid of CAFCASS Legal that had not been the subject of evidence or submission at the trial. They further asserted their primary case before the President had always been to this effect: quite apart from profound concern as to the risks involved in the adoption of any conduit, indirect contact was plainly contrary to F’s welfare because of the extent to which restoration of any communication between father and child after some two years of silence would destabilise her mother. Mr Hayden put it thus in his skeleton argument:

“The Guardian’s primary concern was in any event for the security of the placement in a broader welfare context, not merely confined to the danger of the father discovering the placement. At the time of the hearing F was nearly 9 years of age. Her young life had been scarred by exposure to domestic violence, high levels of parental acrimony and repeated changes of address. She was in desperate need for space to recover what was left of her childhood. The mother’s own peace of mind as F’s sole carer was also crucial. F’s life was also highly artificial, living with an assumed identity. In the Guardian’s analysis, the intrusion of the father, even by indirect contact, into this delicate situation was likely to unsettle F. The Guardian was convinced that F’s need to experience a stable safe home life where her physical emotional and educational needs could be met on a consistent basis overwhelmed any need she might have for a relationship with her father.”

[43]If that was the primary case at trial it was certainly not so understood by the President. The President explained his decision to introduce a regime of indirect contact comparatively briefly. In paragraphs 124 and 125 he recorded the case advanced by Mr Kirk. He then recorded the position of the mother and of the Guardian thus:

“126. …The objections of the mother were not based upon her view that such communications would in themselves be harmful or unduly unsettling for F, but advanced for the following reasons. She was fearful of the father and his desire to re-establish direct contact. In that respect, first, she did not see how arrangements could be made logistically which would be proof against a determined effort by the father to track them down to their present whereabouts. Second, she considered that the steps proposed were for the benefit of Mr P and not for F. Third, she considered that such measures would merely encourage the father and increase his feelings of frustration in relation to increased contact with F. He would soon be making further applications which would disturb the atmosphere and security of their now secure position. 127. The Guardian’s concerns were essentially the same save that, in relation to the second consideration, although F had accepted her position with a considerable degree of equanimity, the Guardian was clear that it would be of long-term benefit to keep alive a positive memory of the father and the paternal family.”

[44]Did the President misunderstand or misstate the nature of the case advanced by the mother and the Guardian? I am satisfied that he did not. Although we do not have a transcript of the evidence given by the mother and the Guardian we have what appears to be a reasonably full note taken by junior counsel for the Guardian, Mr Hargan. That note demonstrates that neither the mother nor the Guardian articulated a primary case of fundamental harm consequential upon reintroducing communication. The evidence of each focused on the risk of tracing through the setting up of any conduit, however apparently safe, and the consequential risk of harm. Furthermore the written submissions of Mrs Bradley and Mr Hayden in closing are similarly confined.

[45]This conclusion is borne out by the circumstances surrounding the delivery of the judgment. Mr Kirk tells us that the draft was circulated by the President on the 13th March accompanied by a letter inviting the parties to give notice of any issue that they wished to raise and an estimate of the time that they would require for the resolution of those issues when judgment was formally to be handed down on 22nd March. Neither counsel for the mother or the Guardian gave any such notice. Furthermore we were informed that the judgment was subsequently handed down with only the briefest exchanges between the parties and the court. Plainly if either the mother or the Guardian conceived that the President had misunderstood or insufficiently understood the nature of their respective cases they should have so stated at that time taking advantage of the opportunity provided. Equally if either the mother or the Guardian were dissatisfied with the President’s independent solution they had ample opportunity to object. The articulation of the Guardian’s concerns in this appeal did not come until the belated delivery of the skeleton argument. That suggests to me a degree of afterthought.

[46]Nevertheless, I recognise the validity of the concerns now expressed by the Guardian. The critical question in the case was not whether the means of transmission were proof against the discovery of the mother by the father, but whether subjectively she could feel confident that she would be secure. Without that sense of security her capacity to make F feel secure would be reduced. F’s wellbeing is totally dependent upon the mother and the father bears the responsibility for the creation of that dependency. Such a fundamental consideration should not go by default simply because it was not put when it should have been put. However the arrangement which the President put in place has already been partially and successfully implemented. If the consequences that the Guardian fears begin to develop then an application can always be made for variation.

[47]At this appeal the appellant has failed to demonstrate a principled basis for intervention by this court. The case now advanced by the mother and the Guardian: i) is hardly to be found in the written evidence and reports filed before the trial; ii) is hardly supported by the oral evidence at the trial; iii) does not figure in counsels’ written closing submissions; iv) was not raised in response to the circulation of the President’s draft judgment; v) received its first clear expression in the Guardian’s skeleton argument filed on 5th October.

Lord Justice Wilson:

[48]I agree with both judgments.