C (A Child) [2008] EWCA Civ 551

Case No B4/2007/2020[2008] EWCA Civ 551
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LICOLN COUNTY COURT
(HIS HONOUR JUDGE JENKINS)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 30 th April 2008
Before
LORD JUSTICE WARD
Between
Applicant FATHERApplicant
IN THE MATTER OF C (A Child)
(DAR Transcript of
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THE APPLICANT FATHER APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a truly distressing case. It may not be untypical of many. In some ways it borders on the scandalous; it certainly is tragic. It is tragic for the applicant, the father of a girl who is a few weeks short of her fourteenth birthday. Moreover, and especially, it is tragic for H. I give the usual direction that her identity is not to be disclosed because that would be truly adverse to her best interests.[2]The applicant and H’s mother were married. It was a short lived marriage. They separated when H was still a baby. H remained living with her mother and although there was a point of time early in this sad story when perfectly good, proper, normal contact was taking place, it gradually disintegrated. There were allegations made against this father that he had sexually abused his daughter. She was a baby, or a little girl, and that matter eventually led to a trial. I am speaking from recollection now. HHJ Morton Jack found that the allegations were wholly without foundation and he acquitted the father of any such abuse; but the seeds of poison had been sown and from it has grown a wall of dislike bordering on hatred for father. When the matter was before me in 2004, his daughter had written to him when she was barely nine years old, saying that she was expressing her true feelings and saying:
“This is what I really think about you. I hate you and I never want to see you again. You frighten me.”
I said of that letter that it struck me as being the most ghastly horrible letter for a nine-year-old to write to her father when there was, as it seemed to me then and remains my view, practically no justification whatever for it. I concluded that it was due to the mother’s drip, drip, drip of venom into the little girl to the point that she could never adequately resist it and eventually came to embrace it; but I did urge that it was the court’s duty to strive to make contact possible and that it was a matter for the judge to decide whether to abrogate the court’s responsibilities for this child or to become more proactive in enforcing future contact.[3]The case went back to the county court. Orders for contact were in fact made. They were supervised by a priest in whose church the mother and daughter had begun to worship, and the Reverend DW gave evidence to HHJ Jenkins on 19 July and she explained how antagonistic H had become to that contact. Her body language made plain that it was an unhappy experience for her, to put it at its lowest. And so that contact broke down and the matter went back to HHJ Jenkins, who by this time had directed that the child should be represented by her own solicitor, an experienced child solicitor whose position statement, placed before the judge, reiterated H’s view that she had been sexually abused. I point out that it is impossible that at the age when this was supposed to have happened the child would have any memory of this at all, so it is obvious that it was something that had been told to her so that she has come to believe it. It could not be a belief formed from her own experience, a) because the judge had found that it did not happen and b) because she would have been too young to remember in any event. But she made it plain she wished to be left alone to get on with her life. She did not wish to explore the matter further with anyone. She would not engage in direct or indirect contact. She would not undergo any counselling or undergo any psychological assessment, as had been recommended by her guardian, an experienced child social worker with vast knowledge of these things. The position statement observed that if an assessment was ordered she would refuse to cooperate. She stated that if she chose to seek contact to her father at a later date, that would be a matter of her choice; although at the time she had no intention of doing so. That was a bleak statement for any father to read.[4]He pursued his application. The mother was cross-examined by him acting in person. He gave evidence himself and I need not repeat the passages from the transcript of the evidence, part of which I have already read. But father was eventually, under cross-examination, forced to acknowledge that contact had not worked, that to enforce further contact would cause distress, that he did not really wish to put his daughter through that ordeal as things then stood. He thought that there would have to be a change but there was no support to make things change. He said:
“So it seems that I have come up against a brick wall. It’s true that you can only do so much. You can do everything you can to make contact work but if it is being obstructed and nothing is being done to correct that situation, what else can you do? You just lose contact then and that is what I have been desperately trying not to do.”
There was a cry from the heart.[5]In the result the father was forced to concede that no order for contact should be made. The judge adjourned the matter for him to take stock of his position. The guardian, whose standing in the case was sympathetic to the father, was there represented by solicitor or counsel, and they met and I am sure advice was given; but the result of it was that the parties came back with an order that had been virtually agreed. The judge had set out his own order when he came back, there was some discussion about it and the upshot was:
“HHJ JENKINS: Are you content with everything I have read out to you? FATHER: I am.”
FATHER: I am.”[6]Now in those circumstances father seeks permission to appeal. His appeal is really based upon his having been put under undue, improper, unfair pressure. In a sense, that, of course, is true; but the pressure was the pressure of the intractable circumstances against which he battled, not unfair pressure put upon him by the judge or by the court proceedings or anything of that kind. The judge conducted himself perfectly properly and no criticism whatever can be made of the judge, who had expressed his sympathy for this awful state of affairs. No appeal lies because we had reached the point where, as father had said, he had come up against a brick wall. Father complains to me bitterly, passionately and with every justification that the law is sterile, impotent, in fact utterly useless; and in the sense that this case has been progressing through the court for years and years and has produced no satisfactory answer, we have to acknowledge that there is a degree of force in what he says. But the question is: what can this court do? The answer is nothing because there is virtually a consent order and it is virtually impossible to appeal against that. There is no other order that could have been made, as the father was forced to accept. What father wishes to have done is sadly impossible: that is, put the clock back and change the behaviour probably of the mother who, in my view at least, is the cause of this state of affairs, for having corrupted the girl and turned her so viciously against her father. But against that there is no adequate remedy and with heavy heart I regret that I must dismiss his application.[7]Before I part from the case, however, I add this. The judge gave no judgment, but he did record the fact that he had made no findings against the father and did not wish to make any finding of fact, apart from that the father was respecting H’s wishes and feelings. At the father’s request there were words added into the order repeating the fact that no findings of sexual abuse had been made against him or of any other abuse against him; and I wish to emphasise that part of the order because one day, I hope, H will read this order. Indeed it is apparent to me that the judge intended that her solicitor should have explained to her exactly what happened in the court below, and I direct that a copy of this judgment be sent to the child’s solicitor with a direction from me that the solicitor must explain to the child that the father has been concerned enough for her to bring this matter back to this court and that I have disposed of it in the way I did, emphasising -- and this is my direction to the solicitor -- emphasising the fact that no blame has been laid at this father’s door for the breakdown of this contact. And I will be grateful if the solicitor for the child would report directly to me the consequences of her further discussion with the child.[8]That is the most I can do for you, Mr C, with a heavy heart and a great deal of regret.[9]A transcript of this judgment should also be made available to the mother, to the guardian and of course to this applicant, and that can be done at public expense because it is a public scandal that these things go wrong.

Order

Application refused