P (A Child) [2015] EWCA Civ 170

[2015] EWCA Civ 170Case No B4/2014/3172
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Chester Family Court
HHJ Butler
LV14C01233
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/03/2015
Before
LORD JUSTICE MCFARLANELORD JUSTICE KITCHINLORD JUSTICE SALES
Re: P (A child)
Hearing Hearing date : 10 th February 2015
Mr Simon Heaney (instructed by Heaney Watson) for the Appellant
Miss Gillian Irving QC and Mr Daren Guite (instructed by Cheshire West and Chester Council) for the First Respondent
Mr Nicholas Sefton (instructed by Carter Vincent LLP) for the Second Respondent
Miss Debora Gosling (instructed by BDH solicitors) for the Fourth respondent
The Third respondents did not appear and were not represented
Judgment
[1]The young girl at the centre of these proceedings, P, is, by all accounts, an intelligent and engaging child. Separately, each of her parents loves her dearly and has much to offer her both now and in the years to come. Yet, despite these extremely important positive features, the present arrangements for her care see her living with her maternal grandparents, in a home that also includes her mother, but only seeing her father once every three months for short, fully supervised, contact sessions. The justification for this dislocation of what might otherwise have been far more ordinary arrangements for young P to enjoy a full relationship with each of her two parents, notwithstanding their separation, arises from her father’s longstanding mental health difficulties and the impact that those have had upon P and other members of the family.[2]It might, unfairly, be said that the father is his own worst enemy. Such a comment would ignore the diagnosis of the father’s mental health difficulties and fail to understand his need for assistance from those in authority rather than their adverse judgment upon his behaviour when he is left to his own devices. As I will explain, P has not been well served by those in authority, in this case the local social services department, whose actions, it may be said, have compounded and exacerbated a difficult situation, rather than working with the case in an attempt to produce a far more positive outcome. Background[3]Having set the scene in that general way, it is now necessary to establish the background with some key detail.[4]P was born on 3rd March 2009, and is now nearly 6 years old. Her parents, who were not married, lived together for the first 18 months of her life. The father, who is now aged 44, has two other children, a boy now aged 18 years and a girl now aged 15 years. He has not had any contact with these two children for some years. Sadly the father has a longstanding psychiatric diagnosis of bi-polar affective disorder. Fortunately the effect of that condition has been moderated to a large extent by medication. In the course of the core proceedings relating to P, which were conducted in 2012/2013, a comprehensive mental health evaluation was conducted by a forensic psychiatrist, Dr Mulligan, whose conclusion was that, in addition to the longstanding diagnosis of bi-polar affective disorder, the father’s behaviour was sufficient to attract a diagnosis of histrionic personality disorder and narcissistic personality disorder. Dr Mulligan is the only psychiatrist to have made such a diagnosis with respect to the father, but that diagnosis was accepted by Recorder Goldrein QC who was the trial judge at the final hearing in February 2013. The father does not accept the validity of Dr Mulligan’s diagnosis of personality disorders. I shall return to the impact of that diagnosis in due course.[5]The mother, who at 31 years of age, is significantly younger than the father, does not suffer from any mental health disability. However, during the time that they lived together and in the fall-out following their separation, the mother was found to be particularly vulnerable to the adverse impact of the father’s behaviour to the extent that she was disabled from acting as an effective parent to P and it is only now, some four or more years later, that active consideration is being given to her taking over P’s primary care from the maternal grandparents who currently undertake that role.[6]The separation between the parents occurred abruptly. In October 2011 the mother left the family home taking P with her without giving any notice to the father. She went to live with the maternal grandparents. Thereafter the father retained P following a contact visit. P was later returned to the mother who, for her part, then refused any further contact. It was at this stage that the Family Court first became involved. On 11th January 2012 District Judge Jones-Evans made an interim shared residence order allowing for P to spend generous time with each of her two parents. This resulted in P returning for a good part of each week to live with her father in the home that had been her home from the time of her birth until the separation some two or three months earlier.[7]The court proceedings continued and it was anticipated that a final hearing would take place in August 2012. However, shortly before that fixture, on 26th July 2012 the father took P to his GP and drew attention to a modest bruise on the child’s forehead. P had had a period of contact with her mother ending some 2 days earlier. P told the GP and other professionals involved in investigating the bruise that she had been hit by her mother. The investigation was complicated by the fact that the mother and father lived in two different police and social service areas. Eventually it was determined that the police in the father’s home area would conduct the investigation and, on 6th August 2012, P undertook an ABE interview during which she, once again, described being hit by her mother.[8]As a result of the events that I have described, the local authority for the father’s home area issued care proceedings on 21st August 2012. The final hearing, lasting three days, before Recorder Goldrein concluded in the making of a full care order to the local authority, thereby endorsing a care plan for P to be placed primarily in the home of the maternal grandparents, where P’s mother was also living. The starting point for contact to the father, which it was anticipated would develop thereafter, was set at one supervised two hour visit each fortnight. On 1st March 2013, as a result of the Recorder’s order, P moved from her paternal grandmother’s home, where she had hitherto been based, to the maternal grandparent’s home where she has continued to live.[9]Before explaining the findings and reasons which supported the making of a care order and such a care plan, it is helpful to bring the forensic chronology to a conclusion.[10]In December 2013 and early January 2014 the local authority conducted a Looked After Children (“LAC”) review of the arrangements for P’s care. That process did not directly engage with the father at all. However, its conclusion was that the present level of contact should be reduced from 26 meetings per year to 4 meetings per year. The father was informed of that decision and, either in consequence of it or coincidentally, he filed a Notice of Appeal on 21st January 2014 (out of time) seeking to challenge Recorder Goldrein’s order. That application for permission to appeal was refused at an oral hearing by Lord Justice Moore-Bick on 20th May 2014. The father had, however, some 8 days earlier issued an application to discharge the care order and, as an alternative, an application for a contact order and it was those applications which were eventually determined by His Honour Judge Butler sitting in the Chester Family Court on 10th September 2014. Judge Butler dismissed the father’s two applications, imposed a number of conditions on the father’s continuing contact, pursuant to CA l989, s34(7), and imposed a s 91(14) embargo upon the father making any further applications under the Children Act with respect to P for a period of 5 years. In his present appeal, which comes to this court following permission being granted by Lady Justice Gloster, the father seeks to challenge each of the determinations made by HHJ Butler. The findings of Recorder Goldrein QC[11]The trigger event which drew the attention of social services to this family was the father’s report of a bruise to P’s forehead on 26th July 2012. By the time care proceedings were issued one month later, however, social services had become concerned that young P, who was then aged a little over 3 years, had been coached into making her oft repeated assertion that she had been hit by her mother. Whilst the existence of the bruise on the forehead was not in doubt, it was nevertheless necessary for the court to investigate both the causation of that bruise and the circumstances in which P came to complain that she had been hit by her mother.[12]As I have indicated, Recorder Goldrein had the benefit of a detailed psychiatric opinion from Dr Mulligan, who had spent no less than 9 hours with the father, spread over two occasions, to conduct her assessment. Her opinion that the father’s behaviour qualified for a diagnosis of histrionic personality disorder and narcissistic personality disorder was based upon identifying the following aspects of his behaviour which form significant component parts of each of these two diagnoses:
“Histrionic personality disorder: • His seeking or demanding reassurance, approval or praise; • He is uncomfortable in situations in which he is not the centre of attention; • He displays rapidly shifting and shallow expressions of emotion; • Are self-centred, actions being directed towards obtaining immediate satisfaction; he has no tolerance for frustration; • His style of speech is excessively impressionistic and lacking in detail. Narcissistic personality disorder: • He reacts to criticism (real or perceived) with feelings of rage; • Shame or humiliation (even if not overtly expressed as such); • He is interpersonally exploitive taking advantage of others to achieve his own ends; • He has a grandiose sense of self-importance, e.g. exaggerating his achievements or talents; • Expects to be noticed as “special” even without appropriate achievements. The corollary of this is his denigration of others without relevant cause; • He believes his problems are unique and can only be understood by other special people; • He is preoccupied with fantasies of unlimited success, power, brilliance, beauty or ideal love; • Has a sense of entitlement and unreasonable expectation of especially favourable treatment; • Lack of empathy, inability to recognise and experience how others feel.” • His seeking or demanding reassurance, approval or praise; • He is uncomfortable in situations in which he is not the centre of attention; • He displays rapidly shifting and shallow expressions of emotion; • Are self-centred, actions being directed towards obtaining immediate satisfaction; he has no tolerance for frustration; • His style of speech is excessively impressionistic and lacking in detail. Narcissistic personality disorder: • He reacts to criticism (real or perceived) with feelings of rage; • Shame or humiliation (even if not overtly expressed as such); • He is interpersonally exploitive taking advantage of others to achieve his own ends; • He has a grandiose sense of self-importance, e.g. exaggerating his achievements or talents; • Expects to be noticed as “special” even without appropriate achievements. The corollary of this is his denigration of others without relevant cause; • He believes his problems are unique and can only be understood by other special people; • He is preoccupied with fantasies of unlimited success, power, brilliance, beauty or ideal love; • Has a sense of entitlement and unreasonable expectation of especially favourable treatment; • Lack of empathy, inability to recognise and experience how others feel.”
[13]Dr Mulligan drew upon her exposure to the full range of documentation that had been filed in the proceedings, which, in turn, included information arising from earlier court proceedings relating to the father’s two older children. In that context Dr Mulligan also had the advantage of having conducted an assessment of the father in 2000 in the course of those proceedings.[14]In relation to the bruise the judge plainly became immersed in the full detail of the events, statements and other communications between the key players in the days surrounding 26th July. As there can be no challenge to the Recorder’s findings made in February 2013 in this appeal, it is not necessary for me to rehearse the detail of that evidence in this judgment.[15]Recorder Goldrein found as a fact that there was a bruise, but that there had been no attempt to conceal that bruise (as had been alleged by the father) and that he could make no finding as to how the bruise came about. In particular, he could not and did not find that it was a “non accidental injury”. He went further and found as a fact that neither the mother nor the maternal grandparents had inflicted any physical abuse on P. Insofar as P had made a complaint of physical abuse by the mother and/or her parents, Recorder Goldrein concluded at paragraph 35 in these terms:
“That the child has so expressed herself, I find in order to please her father, for her father has this fundamental and overwhelming need to be right and loved, including to be loved by his daughter at any price, the narcissistic personality disorder. I find as a fact that that father has coached the child; there is no other reason why the child should be so expressing herself.”
[16]In the course of his more general conclusions the judge “unequivocally” accepted the evidence of Dr Mulligan. The judge found the threshold criteria in CA l989, s 31, proved on the basis that P was suffering and was likely to suffer significant emotional harm arising from the adverse impact of the father’s mental health difficulties either directly upon her or indirectly as a consequence of the effect of those difficulties upon the relationship between her parents.[17]In consequence of the findings that he had made, the Recorder concluded that P would be exposed to real risk of harm were she to be living with her father. The basis of the harm arose from the opinion of Dr Mulligan, which the Recorder accepted, to the effect that, as a result of his personality disorder, the father was unable to identify P’s needs as distinct from his own; that factor, together with his inability to have his opinion challenged and his need to control those around him, rendered P vulnerable to harm. In addition, the father had been “adamant” during interview with Dr Mulligan that he would not be able to work with social services.[18]The opinion of Dr Mulligan was endorsed by the Children’s Guardian. She recommended that it would not be in P’s best interests for her to be placed in the care of her father. However there was clear evidence, to which the Guardian gave full and proper prominence, to the effect that P and her father had a very close and positive relationship which was, in turn, mirrored in her relationship with the paternal grandmother with whom she had lived for the months leading up to the final hearing. The Guardian therefore stressed the importance of contact being maintained between P, her father and her paternal grandmother.[19]The judge endorsed the care plan which was for P to go to live with the maternal grandparents and mother. So far as contact was concerned the judge described the proposal for fortnightly supervised contact as “the correct starting point” (emphasis in original judgment). That conclusion was supported by the evidence of both the Guardian and Dr Mulligan.

The Recorder concluded his judgment on the issue of contact at paragraph 47 in these terms:

“The contact will be subject to continuing review, it’s not cast in stone. The review recommended is every 3 months. I agree and I want this local authority to take a particular note of what I am about to say; the review must be proactive and must also be monitored by the head of social services of the local authority to give some reassurance to the father. I find such contact to be necessary, proportionate and Article 8 compliant.”
[21]The order made at the conclusion of the February 2013 hearing includes the following recitals concerning contact:
“3. The court impressed upon the local authority the need for father’s contact to be reviewed frequently at least every three months and this review to be monitored by the Director of Social Services. 4. The local authority agreed to review father’s contact at least every three months.”
[22]There was no specific order for contact within the body of the court order itself. Father’s contact following February 2013 order[23]Following P’s move to her maternal grandmother’s home on 1st March 2013, the regime for supervised contact with her father every fortnight became established. The local authority delegated the task of supervision to a local agency. This court has seen the LAC review minutes for the review process conducted in June 2013. That document is of note for a number of reasons. Firstly, on the positive side, P is described as being “settled, well-adjusted and content in the care of her grandparents”. Contact had been taking place in accordance with the regime endorsed by Recorder Goldrein and the report states “the contact that P has with her father is very positive; P has a warm and loving relationship with (father) and she benefits from the regular contact with him.” The recommendations section includes the following: “Ensure that the contact for (father) with P is reviewed in accordance with the court order….every three months”.[24]Despite that important positive record, there are two matters of concern arising from these minutes. First of all, in the early section headed “Background” the following account is given:
“P’s parents have been involved in long and difficult private law proceedings. A referral was received by the local authority in relation to an injury which was explained (sic) bruising to P’s forehead which was allegedly caused whilst P was in the care of her mother at her grandparent’s home. The police have investigated this matter and a Section 47 enquiry was undertaken and have concluded with no action being taken against (mother). P’s case has been considered within public law proceedings which concluded at the end of February this year, and P is now subject to a care order made on 28th February 2013 and is placed with her maternal grandparents. P’s mother also resides at the same address. P continues to enjoy a regular contact with her father, which is supervised by the local authority on a fortnightly basis.”
[25]There are a number of striking errors and mis-statements in that background account. Firstly, from the mother’s point of view, the outcome of the court process was not simply a conclusion that no action would be taken against her. Recorder Goldrein, in terms, found as a fact that neither the mother nor her parents had inflicted any injury on P. Secondly, no account is given of the findings which led the court to make the care order. Those findings arose from the father’s mental health difficulties which were absolutely at the core of the case, yet the father’s mental health is not referred to at all in the “background” account. Further, from the father’s point of view, whilst the account notes that he continues to enjoy regular contact, no reference is made to the dynamic nature of the contact plan as endorsed by Recorder Goldrein. That plan was for the once a fortnight supervised contact sessions to be the starting point of a process that would hopefully develop into more flexible and ordinary encounters between father and daughter. Again the “background” account makes no reference to that important factor. It is, therefore, not totally surprising that the minutes themselves do not describe any discussion on the topic of extending contact or reducing the level of supervision.[26]Unfortunately, following that positive account of contact in June, matters seem to have deteriorated in two respects which, at the hearing in September 2014, HHJ Butler concluded were established and, importantly, were related. The first was that by the autumn of 2013 the mother and grandparents were reporting that P was unsettled and challenging in her behaviour in the period around each contact session with her father. Secondly, reports of the contact sessions themselves in the autumn of 2013 included occasions when it was said that the father had spoken to P about his love for her, his desire for her to see him every day or to come back to live with him. In retrospect, the social workers also came to realise that certain of the activities undertaken by the father at contact were “inappropriate”. In this regard the local authority accepted before Judge Butler that the level of supervision had been inadequate.[27]Contrary to the local authority’s statement of intent recorded in the order of Recorder Goldrein, no three-monthly review of contact took place in September 2013. The topic was next considered in any formal context within a LAC review process in December 2013/January 2014. The minutes of that review make it plain that the process did not engage with the father and his mother at all. On 19th December 2013 the Independent Reviewing Officer (‘IRO’) who chaired the LAC review conducted a telephone discussion with the key social worker. On 7th January 2014 the IRO visited P and on 15th January she held a meeting with the social workers and P’s carers. The father’s views were in evidence, it is said, “by way of a wealth of email communication”. The minutes describe P as generally continuing to be happy and settled in her placement, but state that she is experiencing “periods of high arousal and heightened emotion and at times P is struggling to regulate herself emotionally”. This more challenging emotional presentation was, it is said, linked to P’s contact with her father and it was “considered that…a number of bizarre incidents within contact have added to her presentation”. So far as the contact sessions themselves are concerned, however, the minutes record that “the contact that P has with her father is a pleasant experience for P, although the impact is clear in the heightened emotional state that P presents with after the contact sessions”.[28]The review process concluded that the father’s contact sessions with P should be reduced from 26 times per year to four times a year and that contact to the paternal grandmother should be reduced to two sessions per year.[29]The outcome of the review was communicated to the father. As I have already described, his initial response was to seek to appeal the original order of Recorder Goldrein, but, when that failed to gain permission to appeal, he applied to the Family Court to discharge the care order and for an increase in contact.[30]In the meantime the revised contact regime has been implemented. In consequence, the father has only seen his daughter four times during the last 12 months on the following dates: 5th February, 14th May, 28th October and 23rd December. The hearing before HHJ Butler[31]In the lead up to the hearing before HHJ Butler in September 2014, some three or more case management hearings took place either before Judge Butler or HHJ O’Leary during which the father progressed applications for disclosure of material from the police relevant to the original allegation of bruising. He also sought leave to file a further statement and exhibits which were, again, largely focussed upon the original factual determination which the father maintained was “a miscarriage of justice”. Permission was also given to the father to file a DVD compilation containing some 20 or more short film clips of contact with P over the years.[32]The hearing before Judge Butler lasted some five days. The father appeared as a litigant in person. We have not seen a transcript of the proceedings, but it is plain from a perusal of the material submitted to that hearing by the father and from the substance of the judgment itself that the father’s overwhelming focus during those five days was upon the events surrounding the bruise in July 2012, rather than more directly upon P’s current emotional stability and the father’s behaviour at contact.[33]HHJ Butler’s judgment provides a commendably clear and well structured account of the proceedings.[34]As a matter of law, the father’s challenge to the factual determination made by Recorder Goldrein was not a matter that HHJ Butler could entertain, there having been no successful appeal and in the absence of a successful application by the father for the Family Court to re-open the previous fact finding determination. The judge therefore refused the father’s request to consider additional witnesses and allegedly “fresh” evidence. But, as the father was acting in person, it is apparent that the judge had difficulty in controlling the father’s cross-examination of witnesses so that, for example, the judge records that “father cross-examined (the social worker) for approximately three to four hours, the majority of which was spent pursuing the phantom of the alleged corruption of the local authority, and with which (the social worker) was said to be tainted by association.” In the same vein, the judge expresses his difficulty in understanding why the father had insisted upon the mother and maternal grandmother attending to give oral evidence when the questions that the father asked of them were, in the judge’s view, “eccentric and irrelevant”. Be that as it may, Judge Butler does, at paragraph 30, roundly reject the evidence presented by the father in support of his proposition that there had been a miscarriage of justice.[35]Judge Butler found that the description of the father’s mental health difficulties and his presentation set out originally in the opinion of Dr Mulligan and endorsed by Recorder Goldrein, was comprehensively demonstrated by the father’s presentation throughout the hearing. He concluded, at paragraph 48:
“It is quite plain to me that his (the father) view of the world is distorted as a result of suffering from these two personality disorders.” 37. And at paragraph 51: “I repeat, it [is] his illness that is the problem; it is the disorder that is the problem; and that has not changed since the decision of Recorder Goldrein QC, understandably, because it has not been treated, and until it has been treated I can see little or no prospect of an alteration in his behaviour, or in his distorted view of the world, or indeed in his situation in the world. The expression that comes into my mind and is often quoted in this context is that used by the doctor in Macbeth….who described these sort of disorders as a “rooted sorrow”
. That is exactly what it is in my view, and until it is treated it will remain so.”[36]Judge Butler rejected the father’s assertion that P was being harmed in some manner in the maternal grandparent’s home. He did so on the straightforward basis that the father had adduced no evidence at all in support of that allegation.[37]Turning to the topic of contact the judge accepted the account of concerning speech and other behaviour by the father during contact sessions. That account, given by the social worker, was seemingly unchallenged by the father during the hearing and, notably, is not the subject of challenge in the grounds of appeal and skeleton argument prepared by him for this hearing. Part of the social worker’s concern related to attempts by the father to manipulate P and/or her presentation during contact. For example, on one occasion he requested that she should wear a certain watch, on another occasion that she should choose a specific toy, and on three occasions he had set about re-arranging her hairstyle. Of more concern were comments recorded in October 2013 and February 2014 to the effect that he would like P to come and stay with him when she is older and, that he wished he could see her every day. On two occasions he had set up the rear portion of his car as a makeshift picnic site with the consequence that the father, P and the supervisor spent part of the session sitting in the back of the car having a picnic. Finally, the contact centre apparently had a bath that could be used by clients and on one occasion, in November 2013, the father arranged matters so that he and P were in the bath together wearing swimming costumes and playing with the water and toys.[38]Pausing there, it is right to record that the ‘play time in the bath’ incident is of note for a number of reasons. Firstly, it features in the DVD compilation that the father has supplied to the court; its presence there indicates that he does not regard such an event as being anything other than normal. Secondly, although the social worker considered that this activity was “entirely inappropriate”, it is plain that the contact supervisor took no steps to prevent it taking place or to advise the father that he should not engage with his daughter in the bath by getting in there with her. Thirdly, there is absolutely no suggestion in this case that there is any sexual component in the father’s relationship with his daughter, and where the social worker applies the label “entirely inappropriate” that is to be taken as a general statement with no particular sexual connotation attributable to it.[39]Judge Butler considered that the father’s general behaviour at contact was best described as “subtly manipulating” and that such behaviour sat within a spectrum in common with the more extreme form of manipulation evidenced by the Recorder’s finding that the father had coached his daughter into alleging that she had been hit by her mother.[40]A further aspect of the evidence relating to the deteriorating circumstances around contact is that, as the judge found, the father failed to make himself available for meetings with the social workers to discuss these difficulties. He refused to attend appointments offered in November, December and January 2014.[41]On the positive side, the judge readily concluded that there was a strong and warm relationship between P and her father. At paragraph 50 he says:
“It is also equally obvious to me that he clearly loves his daughter very much indeed, and equally clear that she reciprocates that love and affection.”
Then at paragraph 70 he said this:
“I repeat that I strongly suspect that, but for the personality disorders which father has, he would make an absolutely excellent father, but he has these two personality disorders and that stops him from behaving in a rational fashion.”
[42]The Children’s Guardian had also been P’s Guardian in the proceedings before Recorder Goldrein, during which she had been a clear supporter of the plan for contact to develop from the starting point of supervised fortnightly sessions. By the time she came back into the case in the middle of 2014 the contact had already been reduced and, indeed, no contact took place at all between the issue of the father’s applications in May 2014 and their determination by the judge in September 2014. Despite her earlier confidence that contact would be of benefit to P, the Guardian advised HHJ Butler that the father’s focus on the past, his inability to accept advice as to how he should interact with P during the contact and the consequent apparent effect on P around the time that she was seeing her father supported the view that contact should continue at the modest level of four times a year. One particular aspect of the Guardian’s evidence which the judge, in my view rightly, considered was important is summarised at paragraph 97. Its importance is in the perspective that it provides as to the significance for young P of the seemingly short messages that the father is transmitting to her in some of the statements that he has made during contact. I will therefore reproduce paragraphs 97 and 98 of the judgment in full at this stage:
“97. (The Children’s Guardian) repeats in her oral evidence that father had coached (P) in the past. She said there are very subtle messages given to her, for example providing her with his address, and he appears to take P back to the time with him, for example by taking her hair down and playing music which relates to the time she was living with him. These things may be small for father but they are big for P, and she is an emotionally fragile girl, and it is, she said, within the context of her as an individual that this behaviour has a particular impact. I suggested to her that the behaviour might be simply because P was missing her father; she pointed out the obvious flaw in that hypothesis which is if the behaviour was due to missing him then it would have got better when there was more contact, but it did not. P’s behaviour has improved as a result of reduction of contact. 98. Whilst the Guardian was (as am I) in no doubt as to the reciprocated love between father and daughter, the answer as [to] the cause of the behaviour of the child after contact is not because P is missing him, it is because of the behaviour of the father during contact.” (Emphasis from original judgment).
[43]In his conclusion HHJ Butler stated that the only issue before the court was to identify the reason why P’s behaviour should deteriorate after each period of contact. Having referred to the father’s reported behaviour during contact, which, on my understanding, was largely if not entirely unchallenged at the hearing,

the judge concluded in the following terms:

“124. The truth is this, and it really is as simple as this; if father altered his behaviour then contact could increase. He has not altered his behaviour, and of course he cannot because he has these personality disorders, and so therefore contact cannot increase. There will be no progress until his personality disorder is treated. 125. As a result of that I have absolutely no hesitation at all in dismissing his application for increased contact, and it will remain at four times a year until there is an alteration either in the behaviour of P after contact, or by the father during contact. 126. Of course the conditions which the local authority and the Guardian wish me to impose on contact, if he abides by those despite his personality disorder, then all should be well. Whether he will or not of course remains to be seen.”
[44]The judge also had no hesitation in dismissing the application to discharge the care order on the basis that there was no evidence at all before the court that would suggest that to do so was in P’s best interest.[45]Finally, the judge considered the mother’s application, which had been made on notice to the father, for an order under CA 1989, s 91(14). Having reminded himself of the legal context within which such applications fall to be determined, the judge stated the following conclusions:
“142. The applications that have been made to this Court by father, in my judgment, could not possibly have been in P’s best interests, and those are for all the reasons set out in the Children’s Guardian’s position statement at that point (see paragraph four). I am satisfied that it is very much in P’s best interests that such an Order be made. 143. Considering all the relevant circumstances, although this is not exhaustive: (i) Father has tried to use the Court as a form for ventilating matters that went to a challenge of an Order of not only the County Court but also as upheld in the Court of Appeal. In a legal sense that amounts to an abuse of process of a very fundamental kind; (ii) It went to pursuing a complaint as to corruption against the Local Authority; (iii) He attempted to have his daughter give evidence in this Court; (iv) He has occupied approximately five days of Court time issuing applications that are, in my judgment, utterly devoid of any merit whatsoever; (v) He has embroiled the maternal grandparents and the mother in what they describe as a campaign (and I accept that description, it is a campaign) with no consideration of whether that would be appropriate or not; and (vi) I accept again without hesitation that that application and their involvement in these proceedings has had an adverse impact on the mother and the maternal grandparents, both financially and emotionally. They need to devote their energies to caring for a vulnerable child, not defending themselves against baseless charges of neglect and emotional abuse from father, on which (as I have indicated) are entirely without foundation and which I have dismissed. (vii) I have also no doubt that until father’s personality disorders are treated his behaviour will continue in the same or a similar vein. 144. The imposition of an Order pursuant to Section 91(14) of course, does qualify the right of father to bring proceedings, but only if those applications are without merit; if the applications are meritorious then permission would be granted. That would mean that his Article 8 and Article 6 rights would be preserved, and of course the advantages that the Children’s Guardian would be joined as a party to any such applications for permission, and therefore there would be independent input into consideration of what those merits were. 145. I of course remind myself (though I will not need to remind anyone in Court) that it is P’s interests that I protect; her right to a private and family life, and not that of father. 146. In my judgment, if ever there was a case where an Order under Section 91(14) was appropriate then this is it. Again, it is not a finely balanced decision at all.”
The judge endorsed the submissions of the local authority and the guardian by imposing a time limit for the s 91(14) direction set at 5 years, on the basis that this was a proportionate term in order to manage the risks posed to P by repeated applications. (i) Father has tried to use the Court as a form for ventilating matters that went to a challenge of an Order of not only the County Court but also as upheld in the Court of Appeal. In a legal sense that amounts to an abuse of process of a very fundamental kind; (ii) It went to pursuing a complaint as to corruption against the Local Authority; (iii) He attempted to have his daughter give evidence in this Court; (iv) He has occupied approximately five days of Court time issuing applications that are, in my judgment, utterly devoid of any merit whatsoever; (v) He has embroiled the maternal grandparents and the mother in what they describe as a campaign (and I accept that description, it is a campaign) with no consideration of whether that would be appropriate or not; and (vi) I accept again without hesitation that that application and their involvement in these proceedings has had an adverse impact on the mother and the maternal grandparents, both financially and emotionally. They need to devote their energies to caring for a vulnerable child, not defending themselves against baseless charges of neglect and emotional abuse from father, on which (as I have indicated) are entirely without foundation and which I have dismissed. (vii) I have also no doubt that until father’s personality disorders are treated his behaviour will continue in the same or a similar vein. The appeal: the father’s case[46]The father, acting as a litigant in person, filed his own Notice of Appeal which set out two proposed grounds. Firstly, he sought to criticise the judge for preventing him adducing the evidence upon which he proposed to rely to establish the “miscarriage of justice” that he asserts had occurred in 2012/13. Secondly, he argued that HHJ Butler had afforded too much weight to the judgment of Recorder Goldrein and ignored the factual evidence that had been presented.[47]The appeal is supported by a substantial skeleton argument prepared by the father. The skeleton argument almost entirely covers the “evidence” that the father asserts will establish the “miscarriage of justice”. There is no direct reference at all in that document to the contact decision or to the evidence of the father’s behaviour during contact and the consequent impact on P’s emotional welfare that the judge came to accept and upon which the contact order was based.[48]At an oral hearing on 10th December 2014 Gloster LJ granted the father permission to appeal because of concern that professional attitudes towards the father’s mental health may have led to an inappropriate reduction in the level of contact with his child and, secondly, because of concern that the imposition of a s 91(14) direction in this case may not have been justified. Gloster LJ also gave the father permission to adduce a limited amount of additional evidential material on the basis that any formal application to admit fresh evidence would be reserved for determination at the hearing of the appeal itself.[49]Very shortly before the appeal hearing the father did indeed submit a large ring binder of documentation upon which he intended to rely. He also instructed a solicitor advocate, Mr Heaney, to present his case at the appeal hearing. Mr Heaney was given express instructions by the father that the appeal was to be based solely upon the arguments set out in the father’s skeleton argument.[50]At the commencement of the hearing before this court, Mr Heaney confirmed that he only sought permission to refer to three documents in the bundle recently submitted by the father. Those were the two LAC reviews in June 2013 and January 2014 to which I have already made extensive reference, and, thirdly, a short email from the IRO sent in November 2014 (therefore after the determination by HHJ Butler). There was no opposition by any of the other parties to those documents being referred to and we readily gave leave for Mr Heaney to do so.[51]Despite the father’s express instructions which sought to limit Mr Heaney’s arguments to the compass of the submitted skeleton argument, which effectively did not deal with the contact issue, we permitted Mr Heaney to develop other lines of argument which were more directly focussed upon contact and the s 91(14) order. For my part I am both grateful for and impressed by the clarity of Mr Heaney’s contribution to this appeal. Without his intervention it appears likely that the father would have sought to range far and wide on topics which are simply not open for consideration by the Court of Appeal in these proceedings.[52]Mr Heaney’s submissions on contact can be summarised in the following manner: a) In the first paragraph of his judgment HHJ Butler encapsulated the father’s case in the following sentence:
“If he is unsuccessful in his application for discharge of a care order he wishes there to be a substantial increase in contact, both supervised and unsupervised.”
Mr Heaney submits that the judge therefore started on the basis that contact at four meetings per year was the status quo and it was for the father to justify a substantial increase; b) This was an error on the judge’s part. The judge should have sought justification for the local authority’s decision in January 2014 to reduce contact from 26 times per year to four times; c) The judge simply does not engage with the decision to reduce contact from 26 to four visits per year; d) In the context of the s 91(14) application the judge stated that the father’s applications before him were “utterly devoid of any merit whatsoever”, whereas Mr Heaney submits that the father was certainly justified in applying for contact following the radical reduction in January 2014; e) Any upset to P in the autumn of 2013 might well be as a result of the upheavals that had taken place in her care and schooling. There was an obligation upon the judge to investigate these matters, but he failed to undertake that task; f) If the judge was wrong in relation to the contact order then it follows that the s 91(14) embargo must fall away.[53]At the conclusion of Mr Heaney’s submissions we invited him to clarify with the father whether there were any further points to be made in support of the appeal. Of the three or four points that followed, the most prominent was reference to a medical report that the father had obtained from a consultant in general adult psychiatry, Dr Graham Worwood, in September 2014 (therefore following the conclusion of the hearing before HHJ Butler). That report, which we have read, purports to investigate whether or not the father suffers from a personality disorder. Following an assessment interview Dr Worwood concluded that he could find no evidence that the father had a personality disorder.[54]The point having been raised, it is sensible for me to deal with it at this stage in my judgment. The report of Dr Worwood, and the process that sits behind it, have a number of unusual features given that the author was aware of the existence of care proceedings, the fact that the father’s contact to his daughter was restricted, and of the father’s involvement with his local mental health services as a result of the existing diagnosis of bi-polar affective disorder which, the report states, went back to 1989. We have neither heard from Dr Worwood nor sought his observations upon the process in which he engaged. It is therefore unfair to do more than raise the question of whether it was professionally appropriate for a psychiatrist to prepare a report without sight of the father’s medical and mental health records and, apparently, to base the report entirely upon the father’s own self-report of the background circumstances.[55]As a result of the process that was adopted in its preparation, I regard Dr Worwood’s report to be of limited value. It proceeds on the erroneous basis, presumably supplied by the father, that personality disorder “had been suggested as a possibility by his local social services during [father’s] attempts to gain more access to his four year old daughter E”. It does not seem that the father informed the psychiatrist that a forensic psychiatrist, following an intensive assessment based upon a wealth of documentary and interview evidence, had made a formal diagnosis of two categories of personality disorder.[56]The ‘history’ recorded in the report refers to the fact that the father has two daughters, but does not refer to the existence of his son. There is no reference to the fact that the father has had no contact with either of the two older children for some years.[57]The history relating to the circumstances that led to social services becoming involved in July 2012, having described how P’s time with her parents was split between them, proceeds as follows:
“Unfortunately it appears that [mother] got social services involved and expressed concerns that [father] may be a risk of emotional harm to [P].”
That account, again presumably from the father, represents a total reversal of the true position.[58]The examples I have given suffice to illustrate the overall view that this was a flawed process based upon incorrect and inadequate information coming from a single source, namely the individual who was the very subject of the assessment. Whilst it seems that Dr Worwood asked the father to complete a PDQ-4 personality disorder screening self report questionnaire, which did not indicate any substantial personality pathology, this, as its name and lack of prominence in the report suggests, seems to be no more than an ancillary screening tool.[59]When set against the fully informed and very thorough assessment conducted by Dr Mulligan, the report of Dr Worwood, for the reasons that I have summarised, can only have minimal impact. It will have always been open to the father to seek permission for a second psychiatric opinion within the family court proceedings. If permission were granted for such a report, its author would be furnished with the full range of documentation, both medical and legal, and would be expected to conduct a process commensurate with that undertaken by Dr Mulligan. It does not appear that the father ever applied either to Recorder Goldrein or to HHJ Butler for permission to obtain a second opinion. For reasons I have explained, it is not in any event open to this court at this hearing to contemplate setting aside Recorder Goldrein’s findings and his express endorsement of Dr Mulligan’s diagnosis. Even if such an outcome were open to this court, Dr Worwood’s contribution would not, to my mind, come anywhere near establishing fresh evidence sufficient to justify setting aside Recorder Goldrein’s conclusions as to the father’s personality disorder and ordering a re-trial on that point. The appeal: the respondents’ cases[60]Before this court the case for the local authority has been presented by Miss Gillian Irving QC, who did not appear below, leading Mr Darren Guite, who did. In opening her submissions Miss Irving candidly accepted that the manner in which the local authority had set about reviewing contact in December/January 2014 was unsatisfactory and had “the scent of unfairness” about it. The father was neither properly nor sufficiently engaged in the process.[61]Miss Irving also had to accept that, despite the assurance it had expressly given in the court order of February 2013 actively to undertake a review of contact once every three months, the local authority had ignored that requirement and had simply looked at contact as a topic within the ordinary six monthly LAC reviews.[62]In her skeleton argument Miss Irving also concedes that the supervision of contact in 2013, which had been delegated to a local agency, “was lamentable, wholly inadequate and unsatisfactory”.[63]On the substantive issue in the appeal relating to contact, and whist the local authority does not seek to justify the way that the decision to reduce the father’s contact was reached or communicated to him, they submit that the outcome of the process and the judge’s decision cannot be said to be wrong. This, in the local authority’s view, is a father who has failed to accept the outcome of the original court proceedings, does not support the placement with the maternal family, and has acted in a manner with his daughter at contact which has caused her a degree of emotional upset. The local authority, in particular, relies upon the fact that the experienced Children’s Guardian had been in favour of regular contact to the father with the expectation that this would develop and increase. They rely now upon the fact that the same Guardian, having seen how events played themselves out during 2013, supports the minimal level of contact that is now in place.[64]So far as the s 91(14) order is concerned, the local authority submission is that, in effect, the ball is in the father’s court. He knows of the requirements for the conduct of contact which are now set out in conditions attached to the court order. If he can conduct himself in accordance with those conditions, then, submits Miss Irving, when the issue of contact is next reviewed, it is likely that the prospect of increasing the frequency of visits will be favourably considered.[65]So far as restricting the father’s access to the court is concerned, Miss Irving, in frank terms, submitted that the father, if permitted to do so, would use any application to any court to repeat his oft made assertions concerning the bruising seen to P in July 2012. There is therefore, it is submitted, a need to restrict his ability to return to court at this stage. The father will, of course, be able to have access to court where he has any proper application to make, by obtaining the permission of the court to make that application. On a small, but not unimportant point, the local authority do not, however, object to deleting the requirement for any application to come back to HHJ Butler given the strong terms in which the present judgment is expressed.[66]Mr Nicholas Sefton, on behalf of the mother, adopts the local authority’s submissions on the basis that it was appropriate for the judge to approach the issue of contact as he did. Mr Sefton accepts that the judge was not as critical of the local authority as their actions might have justified, but the judge does nevertheless analyse the reasons why contact was reduced.[67]The mother, whose application it was, strongly defends the making of the s 91(14) order. Mr Sefton categorises the father’s obsession with the events of July 2012 and the hearing before Recorder Goldrein as a “campaign”. It is, he submits, a campaign which impacts very adversely upon the child and upon the maternal family who are providing the primary care for her. A s 91(14) order was therefore entirely justified in order to restrict the father’s ability to wage his campaign through the courts.[68]Miss Debora Gosling, who appeared before us on behalf of the child, described how, when the Guardian came back into the case in May 2014, she was faced with a fait accompli with the contact having already been reduced to four times per year and, in fact, no contact actually took place following her appointment for some five and a half months. That said, the Guardian’s position, having analysed all of the evidence, was that the reduction in contact had been justified. She therefore opposes the appeal. Discussion[69]Standing back and observing the passage of events with respect to young P within court proceedings over the past two and a half years from the perspective that is afforded by the appeal process, it is possible to detect a number of unfortunate aspects of what has transpired, each of which may well have contributed to the situation in which this father and daughter are only permitted to maintain a minimal relationship. Having already described the background detail, it is necessary at this stage to do no more than highlight the points that I have in mind: i) The father has neither helped himself, nor helped his daughter, by his dogged obsession with the modest bruise that occurred on her forehead in July 2012. This one issue continues to dominate his thinking to the extent his case before the judge and that the appeal which he proposed to mount failed to focus in any way upon what was being said with respect to his behaviour during contact, but sought to attack the “miscarriage of justice” that he believes occurred before Recorder Goldrein; ii) In the previous sub-paragraph I deliberately used the phrase that the father “has not helped himself” in order to tee up a second point, which is that, as a result of the diagnosis of Dr Mulligan, it may well be that the father is incapable of “helping himself” without outside professional intervention and support. Left to his own devices it may well be entirely predictable that he would act in this way. Equally, left to his own devices, as he was, the fact that the father behaved as the judge found he had done in contact may also be entirely expected. Until the contact was closed down it does not seem that any professional, least of all the supervisor, sought to correct the father in what he said to P or in the activities that he sought to arrange for her when they met; iii) The local authority now accepts that the supervision of contact was “lamentable” and that activities were condoned by the supervisor which the local authority now regard as totally inappropriate. They also accept that the decision to reduce contact was undertaken in a totally unsatisfactory manner which failed properly to engage the father. Those concessions are rightly and properly made. But one has to look at the consequences of those failures by the local authority. A key consequence is that, until contact was reduced, the concerns about the father’s behaviour when he was with P had never been raised in terms with him. He (and more importantly P) had never been given the opportunity to see how he could conduct himself in contact once much more strictly defined ground rules had been put in place. It is correct that the local authority wrote to the father in an attempt to meet him to try to agree some ground rules, but the father declined to engage in the process. However, there is no indication that the local authority did more than that and, in particular, no indication that they considered what strategies needed to be adopted to accommodate the father’s mental health difficulties, which, in other contexts, they accept and rely upon in making plans for P. If the father had a physical disability and was in a wheelchair, the local authority would readily, one hopes, accept responsibility for making arrangements that acknowledged his disability and adapt their work with him in the light of it. There is no indication on the papers before this court that this local authority has considered any alternative methods of engaging with the father in order to draw him forward in a co-operative manner that takes account of the reality of his mental health difficulties; iv) An example of the consequences of the local authority’s various failures in this case arises from their total disregard of the statement of intent that they had given to Recorder Goldrein to review contact every 3 months. Had there been an effective review of contact in September 2013, as there should have been, and had that review engaged properly with the father, it is likely that the difficulties for P at home and the father’s activities during the contact sessions which were beginning to manifest themselves might have been nipped in the bud at that stage, rather than each being allowed to develop during the autumn so that by the turn of the year a very radical reduction of contact was seen to be the only way forward; v) In addition to the failure to conduct reviews focussed on contact every three months, the summary of the “background” in the LAC review minutes that we have seen indicates that those involved in the review process had a totally erroneous understanding of what the case was all about; vi) The “background” to the case can simply be stated and should have been at the forefront of the minds of each of the professionals involved. Firstly, the case involves P, a young child who had hitherto enjoyed a full, positive, warm and strong relationship with her father who, in many respects, was well equipped to care for her and interact with her without supervision. Secondly, the father’s ability to care for P and spend time with her without exposing her to harm was, sadly, compromised by his potential to conduct himself in a narcissistic and histrionic manner. The problem was to determine how, and at what level, P’s exposure to the father could be maximised without causing her harm. The primary focus of the social work intervention should surely have been to educate and encourage the father to conduct himself in a way which minimised the potential for him to act in a manner which might upset P. There is no indication of any such intervention being either considered or undertaken by the social work team. Consequently, the father was left to his own devices in an inadequately supervised setting with the almost inevitable result that, at times, he said or did things which, as the judge found, did indeed upset his daughter. vii) There is now a strict and clear set of “rules” for the conduct of the contact sessions which are set out as conditions under Section 34(7) within the judge’s order. No party seeks to challenge those conditions and whatever the outcome of this appeal they will, for the foreseeable future, continue to be the ground rules for contact. We are told that the father abided by those conditions during the two contact sessions that have happened since the judge’s order; viii) Both the local authority and the Guardian have told this court that if the father does conduct himself properly in contact, and if P continues to show more settled behaviour following visits, then it is likely that a higher frequency of contact visits may be put in place following subsequent reviews. Conclusions[70]Despite the observations that I have made in the previous section of this judgment, many of which support a view that, if the professionals had approached the case in a more focussed and supportive manner in the light of the father’s mental health difficulties, the outcome for father and daughter in terms of contact may well have been more positive, the judge was required to determine the case on the basis of the situation as it was presented at the hearing before him. It is also necessary for this court to evaluate the judge’s judgment against that same background. On that basis I am afraid that I consider that the judge had little option but to endorse the radical reduction of contact that had taken place and to support any future contact sessions by imposing a strict set of ground rules.[71]The court was faced with clear evidence, which the judge accepted, that P had been emotionally unsettled by some of the encounters with her father at contact, the Guardian had offered a clear analysis of how even small interventions by the father had the potential to upset P (again this analysis was accepted by the judge) and the father, in his presentation before the court, was seemingly oblivious to these matters and was, instead, wholly un-accepting of P’s placement with the maternal family and totally obsessed with his ‘campaign’ (a label which is indeed an apt description) to establish that the July 2012 bruise was caused by the maternal family and that there had been a miscarriage of justice.[72]The sentence in the first paragraph of the judgment upon which Mr Heaney understandably relies is, in my view, ambiguous. The application form and statements show that the father was seeking a substantial increase in contact to a far greater extent than merely returning the regime of visits to the pre-January 2014 level of 26 per year; he was seeking unsupervised, staying contact. I do, however, accept that the judge could and should have done more to investigate the local authority’s actions around the turn of the year and the decision making process that led to the reduction to four visits per year. Had he done so, he may well have received the admission of fault that has been made by the local authority to this court, if not, he would have been likely to form his own adverse opinion of the process that had taken place. That said, I also accept Miss Irving’s submission, summarised at paragraph 63 above, that the outcome of the local authority process, and the judge’s decision on contact, cannot be said to be wrong.[73]The primary, indeed the sole, focus of these proceedings must be upon P’s welfare. Whatever the rights and wrongs of the local authority process, whatever the inadequacies and eccentricities of the contact supervisors and whatever the difficulties that the father may have in behaving in a different way without outside intervention, the evidence before the judge established a need to limit, for the time being, P’s exposure to contact visits which she found upsetting and which had the effect of compromising the stability of her placement in the maternal family.[74]Given that the father has not hitherto accepted that the diagnosis of dual personality disorders is valid, the prospect of him voluntarily seeking effective ‘treatment’ in order to moderate the behaviour that justifies that diagnosis seems remote. What could be done, and what had not been done during the 2013 contact, was to implement a much more structured set of ground rules for contact in the hope that the father, by the imposition of these requirements, might come to behave in a manner which was less upsetting for P, notwithstanding his inability to achieve a change through therapy or treatment. In this regard, the imposition of conditions on contact under s 34(7) can be seen as a positive and justified step.[75]I would therefore dismiss the father’s appeal in relation to the contact order.[76]With respect to the imposition of an embargo on further applications by the father under CA 1989, s 91(14) I agree with Mr Heaney that the judge was not justified in holding that all of the applications made by the father were ‘utterly devoid of any merit whatsoever’. The father was fully entitled to ask the court to adjudicate upon the radical reduction of contact that had occurred, following a one-sided process, in January 2014. That said, it may well be that the judge had in mind the content of the case presented by the father to progress his contact application. It was not a case that seems to have been limited to, or indeed even specifically engaged with, the decision made at the LAC review in January 2014. It was not a case which sought to challenge or otherwise address either the criticisms of his behaviour at contact or its purported effect on P. It was, instead, an exorbitant case designed to overturn the previous court decisions and achieve the return of P to his care or, at the very least, a substantial increase in contact. In that regard, the judge’s description of the father’s case before the court as being ‘utterly devoid of merit’ was not misplaced.[77]The imposition of a s 91(14) embargo for a period of five years with respect to a six year old girl who has in the past enjoyed a warm and positive relationship with her father is a very substantial intervention in the ordinary right of that father to bring an application to the Family Court. It is, however, all a matter of proportionality. In the present case I am not satisfied that such an intervention was wrong or otherwise lacked justification. In coming to that conclusion I fully accept the submission of Mr Sefton that such an order is currently justified in the light of the ‘campaign’ that would seem to be at the forefront of the father’s thinking. I also accept Miss Irving’s submission to the effect that all the evidence indicates that, if permitted to do so, the father would use any application to any court to further his case about the July 2012 bruising.[78]The s 91(14) embargo imposed in this case sits alongside the s 34(7) ground rules and the judge’s very clear statements at paragraph 124 that ‘if father altered his behaviour then contact could increase’ and, at paragraph 126 that ‘if he abides by [the conditions] then all should be well’. Given the original hope expressed by Recorder Goldrein and the Children’s Guardian that contact might develop, if, and at present the early signs of this are promising, the father can control himself to act within the ground rules and if P, again as currently seems to be the case, is less upset by her meetings with him, then those changes of circumstance may well establish grounds for the contact arrangements to be reviewed and increased by the local authority or, if not, for a judge to look favourably upon an application by the father under s 91(14) for permission to apply for contact within the five year period. The ball in this regard is, as it has always been, in the father’s court.[79]For the reasons that I have given I would therefore uphold the judge’s order and dismiss this appeal on all grounds.[80]Before leaving the case I do, however, wish to express the hope that the local authority will take heed of the remarks that I have made as to their past failures and their failure to engage in a positive and supportive manner with this father whose vulnerable mental health renders him prone to be seen as his own worst enemy. I do not at all underestimate the difficulties for professionals who seek to work with parents in these circumstances. It may well be that some input from social workers with a specific background in mental health could assist. But, at the very least, in a case where the local authority has parental responsibility for young P, all those charged with working with the family in the months and years to come need to have at the fore-front of their mind the fact that the father’s mental health difficulties are at the core of the ‘background’ to this case.

Lord Justice Kitchin:

[81]I agree.

Lord Justice Sales:

[82]I also agree.