A (A Child), Re [2014] EWHC 4836 (Fam)

"Drawing matters together, whilst I do not conclude that the outcome ordered by the judge is of itself wrong and, therefore, to be set aside, I am sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the Article 8 rights of both M and her father and also, by the deficits in the judge's analysis which I have now identified, to conclude in the words of CPR r.52.11(3), that the outcome is 'unjust because of a serious procedural or other irregularity'. For the previous systemic failure to end in a hearing which itself was highly unsatisfactory and where the judge has failed to conduct a sufficiently thorough analysis makes it almost inevitable that this court will consider that it has a duty to intervene with the aim of establishing an effective and full hearing. (78) This decision is made with a heavy heart, as I fully understand that the idea of reopening these matters before the court will be a profoundly unwelcome one for M. That it is necessary, for the reasons that I have given, I am clear, just as I am clear that, on this rare occasion, part of the responsibility for this turn of events rests with those of us who work in the family justice system. But sight must not be lost of the place where the ultimate responsibility for this situation plainly rests, which is with the parents and, in this case, with M's mother in particular. It is she who has, on the judge's clear and unchallenged findings, doggedly refused to allow M to develop and maintain a relationship with her father without any good reason whatsoever for so doing. It is she, should she wish to do so, who could now unlock this intractable situation and permit her daughter to have some form of normality and balance in her relationship with her parents as she goes through her teenage years and beyond."

"This litigation began in 2001 and, with some interruptions, has continued ever since. There have been no fewer than 81 court orders since 2006, alone, and many more before then. At least seven judges have been involved at one stage or another. In excess of ten employees of CAFCASS have been involved as report writers and, more latterly, as children's guardian. Eventually, following the inability of CAFCASS to provide continuity of a guardian, a mixture of health problems and limited resources, I appointed NYAS as M's guardian. Several social workers have also been involved at various stages. Those few statistics are perhaps the best evidence that there has been systemic failure in this case. (3) The parents were in a relationship for about ten years before M was born. Although never married, they lived together before the birth and for a few months after the birth. An important background feature has been the mother's health problems, both mental and physical, which are of long standing. She had at least one mental breakdown before the birth of M. She has been variously diagnosed as having an emotionally unstable personality disorder, displaying paranoid personality traits and, periodically, suffers from depression. These have not been helped by occasions when she has abused alcohol and/or illicit drugs. She also suffers from Crohn's disease and was unable to attend the final hearing because she had only recently been discharged from hospital after admission for complications from that condition. (4) It is the father's case that, since very shortly after M was born, mother, aided and abetted by her parents, with whom she has had an on/off relationship over the years and who father believes had never liked him, has tried to prevent him from having a worthwhile relationship with M. Mother has always asserted that she wants M to have a normal relationship with her father; that ... have hardly ever been periods when that occurred, she has increasingly put down to M not wanting to go for contact, particularly staying, and, more latterly, refusing to go for contact. (5) Father has only had any contact with M as a result of bringing applications before the court and referring the matter back to court, where mother either refuses to move contact on, or does not produce M for contact. Early CAFCASS reports reveal, as early as April 2002, mother was resistant to contact moving on to overnight stays, although there has never been any doubt about father's ability to cope with the care of M; CAFCASS recommended it. Almost immediately, mother tried to undermine it by saying M was not happy with the food father was providing and M did not want to go. She stopped M going. CAFCASS recommended suspending staying contact. It was reinstated later and, in March 2003, the CAFCASS writer observed: 'The court may feel enough resources have been devolved to this case and it is incumbent on mother and father to make any order work.' (6) Later that year, father saw more of M because mother was in a new relationship and wished time with her boyfriend. M was also being left with her maternal grandparents, who were concerned that mother was drinking heavily, behaving badly and not providing proper care. The acrimonious situation between maternal grandparents and father and, to a lesser extent, mother was noted. A s.37 report was recommended and ordered. The recommendation was for M to stay with mother, and parents to sort contact out between themselves, subsequently defined by the court. Within months, CAFCASS were preparing another report because mother was not providing the contact ordered. Father was considering an application to change residence, but he decided against it. He wanted alternate weekends. That is what was recommended because there was no good reason why a child of nearly five, who has a demonstrably good relationship with the non-resident parent, should not spend a full weekend with that parent. A family assistance order was made. Yet further difficulties resulted in the case being back before the court in March 2006, where no staying contact was ordered, pending yet another report from CAFCASS. (7) Within days of that order, M made allegations that father had sexually abused her. The investigation into those matters was not handled well and breached all guidelines. The judge did not feel the professionals involved had approached the matter with an open mind. There was a five-day hearing, which resulted in the judge concluding that the alleged abuse had not occurred. She described M as telling a story rather than reliving it. Several matters stated in her judgment are informative and have come up time and again in the subsequent history of this case. M is a very bright girl and mature beyond her chronological age. She can be manipulative. In dealings with CAFCASS and social services, mother cannot deny her negative feelings towards father, and M is very well aware of this. M had blown a different minor issue out of all proportion. I believe M played to her mother's sympathy and she got it in bucket-loads. Despite the allegations, M had shown no reluctance to go for contact on other occasions. Father does not come out of this all sweetness and light. Father had accused mother of priming M. The judge did not go so far as to find that proved, but did find that mother was all too ready to find bad in father, which fostered the negatives she already had. Care would need to be taken to avoid M becoming an emotional wreck. (8) A guardian was appointed for M. She observed contact with father on two occasions; it went well. M showed no reluctance and said, afterwards, that she had enjoyed it. Unsupervised contact was recommended. Subsequently, in February 2007, overnight contact was ordered. By then the case was being dealt with the (by now) designated family judge, who has since dealt with virtually every hearing until September 2011. (9) There was a dramatic turn of events a few days later. Mother's mental health was deteriorating. M was with her maternal grandparents. The day before M was due to have her first staying contact with father, mother visited him. When she left, father found a knife concealed down the settee, and his backdoor key was missing. Mother brought M the following day. There was an ugly scene and the police were called. They found the key, and another knife, in mother's handbag. She was charged with possessing a bladed article and harassment of the father. She was admitted to a mental hospital. She was subsequently made the subject of a community order, with a restraining order not to visit father's house. Father was granted a residence order in respect of M on 26th February 2007 and she lived with him, happily, until November 2007. (10) Once mother was discharged from hospital and her health had improved, M started having contact with her. She told her guardian that, although she loved father and wanted to spend a lot of time with him, she would like to return to live with mother. Meanwhile, Dr. Hall, a chartered clinical psychologist, had been instructed to prepare a report on both the parents and M. In her first report (April 2007), she did not consider mother was capable of looking after M properly. By the time of her addendum (September 2007), she did, and her recommendation was that M return to live with mother. The guardian also recommended M return to live with her mother, largely based on M's strong wish to do so and the guardian's view that M was operating at a level above her chronological age and was able to assess her own best interests. (11) In evidence, I asked father whether he had opposed the move back to mother. He told me that that had been his intention, but he was advised by his lawyers that, in the light of the recommendation from the guardian, he was bound to fail. Reluctantly, he had accepted that advice, so there was no contested hearing. He told me - and it is contained in her report - that he was assured by the guardian that mother was now promising to co-operate with contact, and it was on that basis that the guardian made her recommendation. (12) Mother did not regularly make M available for contact, as directed, and further hearings were required in 2008 and early 2009. Contact was ordered and, on some occasions, a penal notice attached. There was a very detailed order with a penal noticed attached, on 12th March 2009. A week later, mother applied to suspend the order. M had returned from contact with a bruise to her leg. She alleged father had caused it by pinching her. Father was to accept that that was correct but only because M at the time was hurting him, and he did it to make her stop. Incredibly, not only was father charged with common assault, but the matter went all the way to a trial before a district judge, who decided that no criminal offence had been committed. [I add that, for the purposes of that trial, M was required to give evidence.] That was in November 2009. In the meantime, the DFJ had ordered that contact was to be supervised by a maternal uncle. (13) M's position on contact was hardening. She was telling her guardian that she was frightened of father. She was refusing to attend contact unless it was supervised by a person of her choice. The guardian took the view that was appropriate. A full hearing was directed and Dr. Hall asked to prepare a further report. In February 2010, she advised that M should not be forced to go to contact in any way than the way she wanted it. That recommendation was adopted by the guardian and so ordered by the court. The mother agreed to go for mediation, at the father's expense. The DFJ made a s.91.14 order, to last until October 2012. (14) In fact the case was back before the DFJ, before long. An order was made for the father to have supervised contact with Core Care. Arrangements were being made for a final hearing and it was agreed that Dr. Kirk Weir, consultant psychiatrist, be instructed because of his expertise in long-running, acrimonious cases. His report was prepared in late July 2011. On 18th August, yet another order was made for the father to have unsupervised contact. M did not attend and the father brought the case back to court on 1st September. On that occasion, M attended court. After speaking to M, the DFJ ordered that she go off for the day for contact with the father. (15) On 2nd September, the mother brought the matter back to court, complaining about what had happened the day before and saying that M had spent the night crying and distressed about the trauma of what happened. In fact, based on other evidence, I later saw (and accept) M had had a thoroughly enjoyable day with the father on the 1st, but then burst into tears when she arrived home to her mother and maternal grandmother and said it had been awful. The DFJ set up a hearing for 30th September, which was later changed to 17th October, for the experts to attend. (16) At the last minute, she was unavailable and the matter came to me. Given that both Dr. Hall and Dr. Weir were at court, I took the view I should hear them. Their evidence lasted until 6.00 p.m. and the hearing was adjourned part-heard until 1st November. I directed unsupervised staying contact in the meantime; it never happened. M rang the father on the Friday morning to say that she would not be going to contact. She maintained that stance despite being told a judge had ordered it. The following day, mother rang father and, in the course of the conversation, said M was old enough to make up her own mind. (17) When the matter came back before me, I made an order for shorter periods of contact and attached a penal notice. I could not have warned mother more fully of the potential consequences if she disobeyed the order. The first contact, M's birthday, went well. It was held at her house, with the mother leaving her and the father alone. Contact was due to start the next day, at 3.00 p.m. By a dreadful mistake, father got the time wrong and turned up to collect M at 4.30 p.m. The mother had, by then, left the house, with M, without trying to reach the father by phone. When he realised his mistake and phoned the mother, she refused to change her arrangements. Essentially, she accused the father of being in breach of the order and letting M down. It was used as justification for M not attending the forthcoming weekend contact, either. (18) I then made a further order for contact, building into the order some flexibility for M to make choices. Because of that and the reason the previous order had failed, I did not attach a penal notice. (19) In the meantime, the latest guardian had developed health problems and was not going to be able to attend the adjourned hearing. All the parties took the view the matter could not proceed without a guardian. A fresh, but very experienced, guardian was appointed in her place."

"(20) She [that is the guardian] had taken the view that there was clear evidence that M may have suffered significant psychological harm and believed that there was a realistic prospect that social services might advise removal of M from the mother's care, to be placed with the father, under a care order. I set a directions hearing for 9th December; an adjourned hearing in February. I directed contact at the discretion of the guardian and social worker. In fact the social worker did not recommend public law proceedings. (21) Shortly before the adjourned hearing date, CAFCASS brought the matter back before me because the latest guardian had now had health problems and could not attend court."

"(26) This is a case where one could raise a number of 'what ifs'. What if the court had taken a stronger line with the mother in the early stages and transferred residence to the father when she blatantly ignored court orders? What if M had been allowed to stay with the father after he successfully looked after her for eight months when the mother had a further mental breakdown? What if the court had not endorsed the recommendations that contact should proceed at M's pace and on her terms? What if, at any stage, there had been a male professional assigned to the case, would there have been a different approach? And what if there had not had to be significant delays after the hearing in October 2011 because of the illness of successive guardians? (27) But I agree with the NYAS caseworker that we are where we are and this case must be determined on the now available evidence; that is that there is no way at present to enable father to have meaningful contact with M. She simply will not attend. I have no doubt that, despite her assertions to the contrary, the mother has always been implacably opposed to contact and that includes the father's extended family, with some of whom M has at times enjoyed good contact. Whether that is because of her mental health problems, as father is still charitably inclined to accept, is probably no longer relevant. It is a fact which M has taken on board. The evidence is clear that, whenever M has contact with the father, it is positive and that M does love her father. I do not believe she is in fact frightened of her father, but she is torn by a loyalty to her mother, who does have serious medical problems. (28) I have enormous sympathy for the father. Despite all that has, quite unjustifiably, been thrown at him, he has remained loyal to his daughter. With a mother and maternal grandparents determined to prevent him having a positive relationship with M, he is in an impossible situation. (29) But, despite all that has happened, M is doing well. She is described as 'bright and doing well at school'. She has a good group of friends, her attendance is good and she is one of the most advanced in her year-group. Although there must remain concern that she has been psychologically damaged by all that has happened in her family life, that is not yet apparent by any disturbed behaviour. Although, for many years, her stated views have, in my judgment, been substantially influenced by her mother, I accept that what she is currently saying are her own views. Given her present age, it is now time to give those views considerable weight. She is entitled to a life which does not involve endless meetings with professionals and the uncertainty of what the next court order will say and which she has no present intention of complying with if not to her liking. (30) Accordingly, my judgment is that a line needs to be drawn under these proceedings. Father is still putting forward other possible ways of achieving contact, but no one else believes they will work; nor do I. The court has tried all possible options, and I must now accept failure. M is increasingly blaming the father for the continuance of the proceedings, and to continue them further will reduce what chance there is that, free of pressure, M will in time realise the father does have a role to play in her life and she will seek him out. (31) Over the last few months, much case law has been referred to in the position statements, skeleton arguments and submissions. I have considered them all, but, ultimately, each case is fact specific. In that small proportion of cases where nothing seems to work, a court must be prepared to say that proceedings have become a part of the problem and are likely to cause damage, or further damage, to the child concerned. This is such a case."

"… the result that family life rights of M and her father to have an effective relationship with one another have been violated."

"No facts have been established to support a finding that, in terms of Article 8(2), it was necessary or proportionate to refuse contact to protect the health or the right or freedoms of others. Goldsack HHJ was right to express a profound feeling of failure on the part family justice system. Other than matters relating to the mother, her physical health, her mental health and/or personality, there has been no valid reason to limit or curtail the relationship between M and her father, yet the court process has concluded, after more than ten years, with an order denying the father any direct contact with his daughter."

"The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner within the limits of the courts' powers, which is likely to be effective as opposed to ineffective."

"In this regard, given that he was basing his decision very much on M's wishes and feelings, it was also incumbent on the judge to face up to Dr. Weir's clear evidence that M's views should not be used as a principal basis for decision-making and explaining why he was disagreeing with the expert on this key point. Paragraph 73: "

"The mother has been manifesting maladaptive, deeply ingrained and enduring behavioural patterns, i.e. suspiciousness, mistrust, hostility and hypersensitivity to criticism, since her adolescence. She has also exhibited features, i.e. social anxiety, poor peer relationships, eccentricity, and, in situations of stress, she has responded with brief psychotic episodes culminating in five inpatient psychiatric admissions, so far. She also has a tendency to abuse alcohol and other illicit substances in excessive amounts at times of stress. Her ongoing stresses include her chronic physical condition and ongoing custody battle with her ex-boyfriend. With regard to the prognosis, though the acute psychotic episode had remitted now, her vulnerability to develop further psychotic episodes in situations of stress still continue, in addition to her coldness, eccentricity and suspiciousness, which are traits of her paranoid personality disorder."

"... suffers from significant personality difficulties, amounting to a diagnosis of emotionally unstable personality disorder with paranoid personality traits"

"The relationship between the parents has been overshadowed by the mother's mental and physical health problems. She is consistently negative about him. He was less so about her, but did rehearse the past events of their relationship with a level of continued surprise and bitterness. It was as if he could not quite believe what had happened and was interested to get my support in this."

"... divided loyalties to her parents, which their disputes maximise. This makes it more difficult for M to know which way to turn without causing distress or anger in one of her parents"

"We have to wait for M to change her mind, rather than pressurise her into having any other form of contact with her father."

"Whatever the influences have been on M in the past, or currently, she has internalised these beliefs and made them her own."

"...is a situation which is commonly seen in high-conflict contact disputes and arises because of the child's conflict of loyalty. Being aware that affection for one parent is likely to be disapproved of by the other, children hide their feelings and may make false statements of their opinion in order to please one or other parent. Children in this situation may also make trivial criticisms of one parent, or false allegations regarding the behaviour of one parent. When the child is trapped in such a conflict of loyalty, it is a disservice to them for adults to absolve themselves of the responsibility for deciding what should be done in the best interests of the child's long-term welfare, regardless of their stated wishes or feelings. Children understand that such decisions have to be made by adults, even though they may protest at the time."

"This is a case in which the child's wishes and feelings are unreliable and to follow them could not possibly be seen as being in the best interests of her long-term welfare. Quite apart from the unreliability of her views, she is only 11 years old and her appreciation of the past and the future is limited not only by immaturity but also by her maternal family's distorted and powerfully expressed perceptions. In my opinion, M would be greatly aided if it was made clear to her that, given the disagreement between her parents, the court has to make decisions which are in her best interests and not simply a reflection of what she says she wants at a particular moment. I think M would understand this and be relieved if contact was ordered by the court."

"The anguish of children caught in high-conflict proceedings is obvious to all. Resident parents who are opposed to contact often propose that it might be helpful to the child if such proceedings were to cease. My experience is that, when proceedings are abandoned in these circumstances, matters get worse, not better. They get worse because contact gradually decreases and ceases. Time passes during which no contact is taking place. It is harder for contact to be reinstated the longer the period of no contact and the older the child. M is at a crucial age and if contact were to cease in the near future, there is a considerable likelihood that her relationship with her father would end."

"... unbearable emotional pressure on M to support her mother's views, and the consequent adverse effect on her ability to enjoy a relationship with her father."

"The position remains that M does not refuse to have contact with her father. She is convinced that matters will be sorted out informally and that contact will continue on an unstructured basis if left to the family to sort out. She is adamant that the court's involvement is counterproductive. She wants the process to stop."

"I am not convinced that such efforts should be continued under court scrutiny, as I believe that the process is having a significant impact on M, and this risks alienating her from contact completely. This will be a great loss to M, as she has shown she enjoys contact with her father."

"Another year or two of enforced contact might be sufficient. The court might tell M that she is still not old enough to decide on such important matters but that the court will review the situation when she is 14."

"A forced transfer of residence cannot be recommended for a reasonably mature 13-year-old unless an agency, such as social services/CAFCASS/NYAS, are prepared to be actively involved in supporting the transfer and the aftermath."

"... the passage of time, the concurrent increase in M's age and the lack of contact are relevant, as all make it less likely that a resumption of contact can be achieved without M's co-operation."

"Not enough heed was taken of the extent to which M's wishes and feelings would be tempered by her anxious attachment and her concerns about her mother."

"If she cannot enjoy it, she will not go."

"Discord, whatever its nature and wherever it emanates from, is a very potent underminer of the child's relationship with the non-resident parent."

"Unless something serendipitous happens, I cannot see contact happening."

"M's life has also been significantly influenced by her mother's mental health, physical health and substance abuse. She has been subject to neglect of her physical and emotional needs when her mother has been ill, and has had to move to live with her grandparents and father, at short notice. (42) In addition to these issues, it became evident that M had been allowed by her mother to feel that she had control over whether or not she had contact with her father. M told her guardian, at eight years old, that she herself decided whether to go to contact or not. This was giving M an inappropriate level of responsibility, for her age and development. (43) M missed many contacts with her father, with her mother often citing M's health as the reason. This meant that M was frequently experiencing confrontation and stress between her parents, from a very early age. Her birthdays had been a source of conflict and she has missed some significant social events involving her paternal family. (44) M has, however, had contact with her father and his family, albeit irregular, inconsistent and fraught with disagreements. She has experienced overnight contact with her father and lived with him for a number of months when her mother was ill. (45) She has witnessed domestic abuse between her parents, and her mother's alcohol abuse. There is little doubt that she has received many negative and unhelpful messages from her mother about valuing her father and about how to conduct relationships and deal with conflict. (46) M has also been given conflicting messages from her mother, who has insisted, and continues to insist, that she is supportive of contact, whilst her actions suggest otherwise. This may go some way to explaining why M, on occasions, displayed rudeness and bad temper towards her father in contact. (47) M has good relationships with her maternal grandparents, who have provided her with a lot of vital support throughout her life, including monitoring her mother's health. Unfortunately, they, too, have a negative view of the father and have been unable to provide a balanced view for M of her father. (48) By all accounts, M has enjoyed many positive aspects of a normal childhood, and court reports have described her being a 'chatterbox' and very bright. Her general health has been good and she has worked hard at school and achieved academically. Later in her report, Ms. Whittle says, at para.53: "

"This does not have to mean that she does not love her father or even that she could not enjoy spending time with him. It does not mean that she may never want a relationship again with the father in the future. But it does mean that she is prioritising her own needs at the present time."

"It is almost certainly impossible to rebuild something here."