RH v (Applicant) [2007] EW Misc 7 (EWCC)

IN THE SUPREME COURT OF JUDICATURE

IN THE COVENTRY COUNTY COURT

[2007] EW Misc 7 (EWCC)

Case No Case No. CV05PO0306

Between

(Applicant)

(First Respondent)

R (by his guardian Mrs C A Alexander-Graham, instructed by NYAS)

(Second Respondent)

Before

His Honour Judge Bellamy Designated Family Judge

Date 18 May 2007

[1]R was born on 30th June 1996. He is almost eleven years old. His parents are BK (the mother) and RH (the father). On 12th September 2005 His Honour Judge Fletcher made an order under s.91(14) Children Act 1989 (the Act) which restricted the father from making any further application for a period of twelve months. On the very day that order came to an end the father issued a further application for redefinition of contact. I heard evidence on Monday 14th May and adjourned until 18th May for submissions. I heard submissions this morning. I now give my judgment on the father's application.

[2]This case is, as will appear shortly, a case which properly merits the description 'intractable'. On 12th December 2006, pursuant to FPR rule 9.5, I made R a party to the father's present application and invited NYAS to act for him. NYAS accepted that invitation and appointed Mrs Cassandra Alexander-Graham to act as R's guardian. Both parents are unrepresented. Although the mother had legal representation during the early years of this dispute, the last hearing at which she was represented was on 4th August 2000. Since that date both parties have been unrepresented at all hearings.

[3]Before I consider the evidence that has been adduced in respect of the present application, it is appropriate that I should review the very long history that lies behind it. Background history

[4]The mother is aged35. The father is aged

36. They were married in 1992. By 1998 the marriage had broken down irretrievably. The mother issued a divorce petition on 10th August 1998. The physical separation of the parents did not happen until January 1999 when the mother left the family home taking R with her. R has remained in the mother's care continuously since the separation. Decree nisi was pronounced in the mother's favour on 29th January 1999.

[5]Since their physical separation there have been court hearings relating to R in every calendar year. By the time I first became involved in this case in October 2006 there had been a total of ten section 7 reports prepared by CAFCASS and its predecessor, the Family Court Welfare Service. There have now been more than thirty court hearings before a total of thirteen different judges. The history of this litigation is as worthy of condemnation as that described so memorably and graphically by Munby J in Re D (Intractable Contact Dispute: Publicity)

[2004] 1 FLR 1226

to which I shall return later in this judgment.

[6]On 4th February 1999 the mother issued an application for a residence order. An interim residence order was made in her favour that same day by District Judge Hargreaves. That order was continued by His Honour Judge Pyke the following week, on 10th February.

[7]The application was listed for further directions on 24th March. This time the application came before Her Honour Judge Fisher. Judge Fisher made an order by consent for visiting contact on Saturdays. She adjourned consideration of the father's request for overnight contact until 10th May and gave a direction for the preparation of a section 7 report.

[8]On 24th March, the same day as the hearing before Judge Fisher, the father issued an application for a contact order.

[9]On 6th April 1999 the mother issued an application for variation of the interim contact order made on 24th March. According to the mother's application form, 'on the first contact visit on the 27th March 1999 the [father] was abusive to the [mother] and aggressive towards her brother. The police had to be called after the [father] assaulted the brother. The violence and bad language were witnessed by the child who was crying and upset. The [father] has no apparent concern for the child.' This was met by a further application by the father, dated 22nd April 1999, by which he sought a residence order.

[10]The matter next came before the court on 10th May. It came back to Judge Pyke. He made an order, by consent, for contact to take place on Saturdays and for the mother to deliver R to and collect him from the father's home at the beginning and end of contact visits. The judge also set the parents' applications down for a fully contested hearing on 16th and 17th August 1999.

[11]The first section 7 report, prepared by a Court Welfare Officer, Mrs B, is dated 21st May 1999. During interview with Mrs B the mother disclosed that she had been the victim of domestic violence. Mrs B records that 'RH did not deny that he was violent at times towards [the mother] but maintains that he was provoked on each occasion by her attitude and behaviour towards him.' Mrs B's report predates the decision of the Court of Appeal in Re L (Contact: Domestic Violence)

[2000] 2 FLR 334

and the Good Practice Guidelines subsequently produced by the Children Act Sub-Committee of the Advisory Board on Family Law. It is perhaps unsurprising, therefore, that the court did not direct that there should be a finding of fact hearing to consider the mother's allegations of domestic violence. There appears to have been no consideration by the court of how, if at all, the issue of domestic violence should impact upon the decision-making process so far as the issue of contact was concerned.

[12]By the time of Mrs B's first report only very limited contact was taking place. As a result, Mrs B had not had the opportunity to observe contact between R and his father. She therefore proposed to make arrangements to observe contact and then to prepare an addendum report.

[13]Mrs B's addendum report is dated 21st July 1999. In it, Mrs B recommended that there should be no change of residence. Her report was silent about future contact. At paragraph 6.3 of this report, Mrs B records that during the observed contact session the father criticised the mother for keeping R away from him. Mrs B says that 'RH was asked not to refer to [the mother] in a negative way in R's presence'. A little later, at paragraph 7.4 of her report, in the course of considering the factors in the welfare checklist, Mrs B makes the point that 'RH does not acknowledge the importance of [the mother] in the child's life and does not shield R from his own negative feelings towards [the mother].' Later still, at paragraph 7.6, Mrs B observes that 'the tension still remains between the parties and in particular feelings of hatred which RH holds for [the mother].' And at paragraph 8.5, Mrs B records that 'RH said he hated [the mother]…We asked him whether R talks about his mother during contact with him. RH said they have better things to do than talk about [the mother].' I highlight these passages because, as will become apparent later in this judgment, the father's negative and hostile views of the mother remain as strong today as they were in 1999. They are, in my judgment, all-pervasive and colour his every thought and action so far as the mother is concerned.

[14]The hearing in August 1999 was dealt with by Her Honour Judge Deeley. This was to be the first of three contested hearings dealt with by Judge Deeley and is the only one of those hearings for which a transcript of her judgment is not available.

[15]At the conclusion of this hearing the judge made a residence order in favour of the mother and dismissed the father's application for a residence order. The order went on to provide for the father to have contact every Saturday from 12.00 noon until 6.00pm and on Wednesdays from 8.00am until 6.00pm. The order also provided that staying contact should commence in October and that Mrs B should observe contact and provide an addendum report by 10th November. The case was listed for review on 16th November.

[16]The issue of contact was addressed in Mrs B's third report dated 9th November 1999. By that time the father was having visiting contact in accordance with the terms of the order made in August 1999. It is sufficient to refer only to the final paragraph of Mrs B's addendum report. Mrs B says that 'Despite the contact we observed at this office RH appears to get little joy out of this. He still views the current level of contact as useless as it is not the outcome he wanted. RH is so focused on what he believes has been taken away from him that he seems unable to take pleasure in the contact he has. He sees his future in his current home with R's residence secured with him. RH has described feelings of suicide in a recent letter to BK, which now raises in our minds concerns over possible ways in which RH's mental state may impact upon the child's welfare during unsupervised contact.'

[17]In the light of this last observation, when the matter came back before the court for review on 16th November 1999 Judge Deeley made a direction that there should be a psychological assessment of the father. She ordered the report to be filed by 25th January 2000 and listed the application for further directions on 3rd February. At the same time, Judge Deeley varied the contact order made in August. In its varied form the Saturday and Wednesday contact continued (though between changed hours) but the provision for staying contact was not continued.

[18]The matter came back before the court on 3rd February 2000. That hearing was conducted by Judge Pyke. The psychological assessment had not been undertaken. Judge Pyke adjourned the hearing for six months.

[19]The psychological assessment was eventually undertaken by RB, a forensic psychologist. RB's report is dated 17th May 2000. Its focus was very limited. RB was asked to report on the state of the father's mental health and upon his ability to care for R overnight if staying contact were permitted. So far as this last issue is concerned, in my judgment the report is not child-focused. RB concluded merely that 'There are no psychological processes noted which would indicate that RH would not be able to appropriately care for his son on an overnight basis'. There are, though, aspects of this report that resonate with concerns expressed by other professionals involved with this family over the last eight years. At paragraph 11.2 of his report, RB says that the father ' is likely to be seen by others as arrogant and narcissistic with traditional male role values. He may appear to be friendly and make a reasonable (sic) good impression. Over time, there may be attempts to dominate or manipulate in order to get whatever he wishes. He may have difficulties with interpersonal relationships as he may find it difficult to reach compromises or be in any way submissive. He may be considered by others to be opinionated, over-evaluate his own self-worth, and be unaware or have little insight into the consequences of his actions on others. He may also display a tendency to have difficulty completing projects that he starts, and display a low tolerance for frustration.' At paragraphs 12.1 and 12.2, RB goes on to say that 'The only concern is RH's view of his ex-wife and how that may effect R. Whilst he has considerable ill-feeling towards his ex-wife, he noted in the assessment that he "has better things to do with my time" than make derogatory comments about his ex-wife to R. Nevertheless, his personality profile suggest (sic) an individual who make (sic) attempt to manipulate a situation to his benefit. To this end RH may find it beneficial to be afforded the opportunity to enter into a therapeutic relationship to explore the issues surrounding his ex-wife…' It is now more than seven years since that recommendation was made. The father has not undergone, has not sought to obtain and sees no need to take steps to obtain the kind of therapeutic help proposed by RB.

[20]The case next came before the court on 12th June 2000. At this hearing, District Judge Ridgeway directed Mrs B to file a further addendum report by 10th July and gave directions for a full hearing of the father's application for staying contact.

[21]Mrs B's fourth report is dated 10th July 2000, the court having requested an addendum report to enable Mrs B to reflect upon the outcome of the psychological assessment of the father. In this addendum Mrs B notes that some of the observations made by RB resonate with the concerns expressed by her in her earlier reports. In view of that, Mrs B found RB's conclusions surprising. At paragraph 5.1 of her report, Mrs B says 'Certain elements of the personality profile as outlined by RB may be common among people who come before the Courts in this type of dispute, but based on my observation in RH's case they appear more evident and prevalent to a much more noticeable degree. The effect of this on a child of R's age could undermine the stability and security of his mother's care. We would ask the Court to consider curtailing contact and setting boundaries based on R's needs as we have little confidence in RH relating what he wants to the needs of the child.'

[22]The full hearing of the father's application for staying contact was dealt with by District Judge Kesterton on 4th August 2000. He ordered alternate weekend staying contact from 10.00am on Saturday until 7.00pm on Sunday together also with additional visiting contact. He directed that the matter be listed for further review on 20th November 2000.

[23]Although I have not seen the application form, it would appear that the father subsequently issued an application for either enforcement or variation of the order of 4th August. The time for service of that application was abridged and it was listed before a Recorder, Sir Andrew Watson, on 16th October 2000. The Recorder ordered the mother to make R available for contact with the father from 10.00am on Saturday 21st October until 7.30pm on Monday 23rd October.

[24]The matter next came back before the court on 20th November 2000. This hearing was conducted by District Judge Ridgeway. He ordered that the Court Welfare Service prepare a further report on the progress of contact, the timing of contact and holiday contact. The father was unhappy with that order. Although he issued what appeared to be an application for Christmas contact, his statement in support of that application began 'I RH…make this application to appeal the order made today by district judge Rigway (sic)'. His application was listed for hearing before His Honour Judge John Wilson on 14th December. The judge ordered the mother to make R available for contact from 10.00am on 29th December until 7.00pm on 31st December.

[25]By the date of District Judge Ridgeway's order for an addendum to the section 7 report, Mrs B had left the Court Welfare Service. Responsibility for reporting in this case was taken over by Mrs W. Mrs W had previously co-worked the case with Mrs B and was therefore familiar with the family members and with the issues. Mrs W first report (the fifth section 7 report in total) is dated 24th January 2001.

[26]Mrs W highlights a point that had been adverted to in earlier reports. She says at paragraph 5.7 that '[The mother] says that the clothes she packs for R are not used when he stays overnight with his dad, and according to the child his father changes his clothes and those clothes remain at his father's home and are only used for contact.'

[27]Mrs W' concerns about the father also find an echo in earlier (and subsequent) reports. In paragraphs 6.4 and 6.5 she says that 'What remains of concern is that [the father] has a fixed view in respect of contact that has little to do with the needs of R…[The father] has made it clear to us that he will not accept advice from the Court Welfare Officers, or indeed the mother of the child, of whom he speaks in derogatory terms. It is likely that [the father] will involve the Court further if any slight adjustments to arrangements have to be made.'

[28]The application came back before Judge Wilson on 6th February 2001. He set the application down for final hearing on 23rd April and gave consequential directions.

[29]Before that hearing took place the father had issued yet another application. I have not seen the application notice. On 15th February 2001 District Judge Kesterton abridged the time for service of the application and listed it for further hearing on 21st February. That hearing was conducted by District Judge Ridgeway. He ordered that the father be allowed two additional nights contact on 23rd February and 23rd March.

[30]As directed by Judge Wilson, the case came back before the court on 23rd April. This time the hearing was conducted by His Honour Judge Eccles QC. Judge Eccles made an order requiring the mother to make R available for contact alternate weekends from 10.00am on Saturday until 7.00pm on Sunday; on three specific weekends in July, August and September contact was to begin at 6.00pm on Friday evening instead of Saturday morning. The judge also directed that there be a review on 23rd October 2001 and that a supplemental section 7 report be filed by 20th September 2001. By this time the Court Welfare Service had ceased to exist and CAFCASS had been set up. The report was again prepared by Mrs W. This report (the sixth section 7 report to be prepared) is dated 17th October 2001.

[31]By the date of this report R was almost 5½ years old. He was therefore old enough to express a view. At paragraph 6.8 of her report Mrs W says that she asked R whether there was anything he 'would like to tell the Judge' to which he replied 'I don't want to go at all to see my dad'. Mrs W then concludes her report with the following paragraphs:

'8.1 R's negative response to contact was not expected and therefore there had not been time to discuss his feelings with both parties. However, experience of this case would suggest that little would be gained, even if the parties were willing, for a joint meeting to take place. RH, it is anticipated, would not accept that some attention needs to be paid to how contact is carried out and certainly would not accept advice from [the mother]. 8.2 It is therefore recognised that the interview with the child will pose something of a dilemma both to the parties and to the Court; certainly from what R indicated he is not coping very well with the current pattern of contact. 8.3 It is, in my view, too difficult for R to spend two nights away from his mother at this time, he clearly misses her and may wish to protect her from further arguments. RH is unlikely to agree with any reduction in contact and the Court may need to adjudicate on this matter.'

[32]The review hearing was conducted by District Judge Waterworth. He continued the arrangement for weekend contact from Saturday morning to Sunday evening. He also provided for visiting contact on alternate Friday evenings from 4.00pm until 7.15pm. Significantly, he also made the first of four orders that have been made under section 91(14) directing that there be no further applications by the father for an increase in contact before 3rd June 2002. An appeal against that order was dismissed by Judge Deeley on 18th March 2002. The father applied to the Court of Appeal for permission to appeal against Judge Deeley's order. His application was refused, Lord Justice Thorpe describing it as 'an absolutely hopeless application'.

[33]On 18th June 2002, within days of the expiry of the order under section 91(14), the father issued another application for an increase in contact.

[34]The father's latest application came on for hearing before Judge Deeley on 18th July 2002. The judge directed the preparation of yet another section 7 report, to be filed by 4th October. This, the seventh report, was again prepared by Mrs W. It is dated 3rd October 2002. One consistent feature of these proceedings has been the father's failure to provide any financial support for R and his equally consistent justification for this by reference to the financial settlement ordered by the court following the divorce. I shall consider this further when I come to assess the father's evidence. At paragraph 4.5 of this latest report, Mrs W refers to the mother's application to the Child Support Agency. She says '[The father] said that it was true that the C.S.A had contacted him although he was unsure why...'

[35]Of greater concern to Mrs W, though, was the father's emotional relationship with R. At paragraph 7.6 she says that '[The father's] ability to respond emotionally to R is, we believe, limited as he is in our experience an emotionally distant person who finds it very difficult to see things from other people's standpoint and to understand that sometimes it may be difficult for R to move between his two parents, given the hostility that [the father] continues to feel against [the mother].' Mrs W goes on to acknowledge that, in the light of the earlier psychological assessment, 'it may well be [that the father] is not able to respond in any other way, however we do find [the father] able to manipulate situations to attempt to prove his point, to the detriment of R.'

[36]Mrs W concludes that she was not able to support the father's application for an increase in contact. Importantly, in the final two paragraphs of her report Mrs W expresses the opinion that 'the situation between the parties will not change, [the father] has made it very clear at interview that he will continue to approach the Court until he gets the level of contact that he judges is right for R, he sees no problem for the child involved in repeated applications.' That opinion was made more than four years after the first application to the court. Just by looking at the history of events over those four and a half years it is clear that that opinion was fully justified. Sadly, consideration of the father's behaviour since the date of that report confirms that Mrs W' opinion was accurate in every respect.

[37]The application came back before Judge Deeley for a contested hearing on 17th and 18th December 2002. There is a transcript of her judgment. It is appropriate to refer to some of the evidence noted by the judge and some of the findings and conclusions she came to. Judge Deeley said that 'Contact is referred to by father…as a legalistic requirement with sanctions for failure to comply. Not only does this show a total failure of father to see the opportunity to express his love for his son, it also carries an implied threat against the mother and is manipulative on father's part… Father is extremely hostile towards mother and very suspicious of her. He sees himself as a victim, long-suffering at the hands of the mother and of the CAFCASS service. He sees only what it suits him to see and completely shuts out anything which is adverse to him or displeases him… Father is manipulative. He wrote letters to court on an earlier occasion professing suicidal feelings, which he did not have, in an attempt, he later admitted, to gain the sympathy of the court. He has no regard for the potential effects of his actions on others and in particular his child… I am in no doubt that father is an intelligent man and a manipulative one, who will say whatever suits him regardless of whether that undermines the child's security in his own home or undermines his relationship with his mother or causes the child confusion. I believe that father is presenting this child with emotional danger… I am satisfied that mother has always tried to make contact work even when her better judgment thought it was not in the child's interests… This child is not happy with contact as it currently takes place. More than that: he is becoming deeply unhappy with it, to the extent that he is prepared to face his father and say so…If contact is not to fail altogether in the longer term, its format must be radically reviewed now in the hope that the difficulties can be identified and ironed out…'

[38]Judge Deeley went on to end staying contact and to make new and very detailed arrangements for visiting contact. She listed the matter for review before herself on 14th August 2003 and directed that there be a further section 7 report to be filed by 31st July. The judge also made a further order (the second) under section 91(14) prohibiting the father from making any further application for contact before 1st July 2003.

[39]Notwithstanding that order, on 27th January 2003 the father made another application. That same day District Judge Ridgeway gave the father permission to withdraw his application – the only application ever issued by the father not to have been proceeded with by him. However, a week later, on 3rd February, the father issued another application, this time to enforce the existing contact order. That same day District Judge Ridgeway ordered that his application be treated as an application for a penal notice to be endorsed on the order of 18th December 2002 and listed the matter for hearing before a Circuit Judge on 7th February. The application came on for hearing before Judge Deeley and was dismissed. The father issued an application for permission to appeal against that order. That application came before Judge Deeley on 26th February and was also dismissed.

[40]The eighth section 7 report, again prepared by Mrs W, is dated 13th August 2003. By the date of this report the father had apparently decided that co-operation with CAFCASS was no longer worthwhile. Mrs W notes that the father 'did not wish to attend the CAFCASS office, so it was agreed that information could be given over the telephone.' Having spoken to the parents and R again, Mrs W' concerns about the father's ability to engage emotionally with R remained as acute as before. At paragraph 7.6.3 of her report she says that the father's 'ability to respond emotionally to R's needs is very limited, he has no capacity to view the situation from R's point of view, he will only accept his own interpretation of events, and is likely to continue to approach the Court and appeal against any decisions made unless they are in keeping with his own wishes.' In short, yet another year on and still nothing had changed.

[41]On 14th August 2003 the application came before Recorder Rodgers. He listed the outstanding application for final hearing on 11th and 12th September. That hearing was once again conducted by Judge Deeley. Once again there is a transcript available. Again it is appropriate to refer to passages from that judgment. Judge Deeley said 'I am quite satisfied that father finds it very difficult or refuses (I know not which) to look at a situation realistically. He does not listen to the child when he expresses his views, to the mother if she expresses a view which is contrary to his own, or to the CAFCASS officers…I do not believe that he is concerned for the child. I believe that he is obsessed to achieve a goal, and that goal is to obtain something which he believes is opposed… Because of the father's rejection of all views but his own the prospects of his behaviour changing are remote as he sees no need to change his attitude… I had the very distinct impression that father regarded the occasions of contact as his due and that he was intent, wherever he thought it possible, to enforce what he thought were his rights. That is a very sad misunderstanding by father of the real purpose of contact, which is for the benefit of the child… I find that there is a danger to the relationship between the father and the son if the father does not begin to listen to what the child says and accept that those are his true views, and adapt his own demands for contact to accommodate the feelings, wishes and social life of his son… I am very concerned as to potential emotional harm for [R]. It is a great burden on a child to have to live two separate lives, one with his father and one with his mother, and it is plain that that is what this child is having to do… I am very concerned also that father appears to have no appreciation of the effect on the child of bringing matters back to court time after time after time. The inevitable tensions it raises in the household, the child cannot fail to pick up, and that will become more and more the case… I am satisfied that it would be contrary to the interests of R to provide for overnight contact.'

[42]The judge made a very detailed order for visiting contact and an order under section 91(14) preventing the father from making any further application for residence or contact before 12th September 2004 (the third such order). The judge also refused the father's application for permission to appeal.

[43]At some point after the expiry of the order under section 91(14) the father issued another application. On 17th November 2004 the application was listed for a conciliation hearing before District Judge Waterworth. The duty CAFCASS officer was not able to help the parties to arrive at an agreement and the judge therefore made an order for the preparation of a further section 7 report. That report, the ninth section 7 report, is dated 4th February 2005. By this time there had been another change of officer, Ms A having taken over responsibility for the case. Notwithstanding the change of officer the father's willingness to co-operate with CAFCASS had diminished further. At paragraph 2.3 of her report, Ms A notes that '[The father] was invited to an individual interview on the 24/01/2005. [The father], upon receipt of our letter of invite, wrote refusing to attend…[He] was written to a second time highlighting the change of officer. [He] still chose not to attend the appointment offered.'

[44]The focus of this report was, once again, on the issue of overnight contact. At paragraphs 6.6 and 6.7 of her report Ms A says 'R was asked specifically if he would like overnight contact, as he didn't raise it. R immediately answered "no" and needed some reassurance to relax him that we were only enquiring as to his view. R was aware his father wanted overnight contact to occur and said that he himself had told his father he didn't wish for it.' Ms A returns to this issue at paragraph 7.5 of her report. She there says 'Whilst there is no indication R has, or is likely to suffer physical harm, we hold concerns as to his emotional welfare. As a young child R was exposed to domestic violence between his parents, and [the mother] continues to feel intimidated and bullied by [the father], particularly through this process. [The father's] action of continually returning issues before the court serves to intimidate [the mother] and impact upon R. This service has real concern as to [the father's] motivation in making applications.'

[45]Once again, concerns are raised about the emotional relationship between father and son. Ms A says that 'Emotionally R appears to be managing very well considering the tensions between his parents. We do have some concern however for the long-term potential of his emotional relationship with [the father]. [The father] is portrayed in reports, and by [the mother] as emotionally detached, and we are left with some questions as to the emotional bonds and attachments that will then exist between father and son. The existence of strong bonds will be essential for the long-term survival of a healthy parent/child relationship. Once R is of an age whereby peers hold more interest than [his father], without a significant emotional bond it is unlikely R will continue to visit.'

[46]In the light of all these concerns, Ms A advises against a reintroduction of overnight contact saying that she would 'consider such a change to be harmful and not in R's best interests…Based on the enquiries made, this service is of the view that no overnight contact should be ordered at this time…'

[47]The father's application came back before District Judge Waterworth on 15th February 2005. The District Judge dismissed the application. The father appealed. His appeal was heard by His Honour Judge Fletcher on 25th April 2005. The appeal was allowed. An order was made for an addendum report from CAFCASS and the application listed for final hearing on 21st July.

[48]The tenth and final section 7 report, again prepared by Ms A, is dated 17th June 2005. The message of this report is very much in tune with all previous reports. Having had the chance to meet with the father Ms A says that 'This Service remains concerned for R's long-term emotional relationship with [the father]. Previous reports and [the mother] describe [the father] as emotionally detached. Having now met with [the father] we would share this view. In discussion [the father] spoke of "the child", "the mother" and "the parents". [He] was unable to consider the potential for R and himself to enjoy quality time together within the current contact arrangements…From meeting with [the father] it would already appear that R and [the father] are unable to sustain a one to one relationship and that R only enjoys contact, which involves the extended family…Having met with R and [the father] this Service remains of the view that R is strongly opposed to any such increase [in contact[. We do not consider having met with [the father] that overnights will improve the direct relationship between father and son. Given R's negative reaction to it we consider it would offer no benefit to R but may compound existing difficulties…Whilst we believe [the father] is capable of meeting R's physical needs he is not capable of meeting R's emotional needs. [The father] himself has stated that the "father and son relationship is at a virtual end". By his own admission [the father] is not able to entertain or enjoy daytime contact with R merely spending time together.'

[49]The final hearing was conducted by Judge Fletcher. The hearing went part heard from 21st July to 26th August and then until 12th September. Notwithstanding the recommendations made by Ms A, the court ordered that there be visiting contact on alternate Saturdays from 9.30am until 7.00pm and overnight contact on four occasions a year during the spring half term school holiday, the Easter school holiday and twice during the summer school holiday, such contact to be from 5.30pm on Friday until 7.30pm on Sunday, the father to collect R from the mother's home at the beginning of contact and the mother to collect him from the father's home at the end of contact. The judge also made an order prohibiting both parents from removing R from the jurisdiction and an order under section 91(14) (the fourth such order) prohibiting the father from making any further application for residence or contact before 12th September 2006. Unfortunately there is no transcript of Judge Fletcher's judgment and so I do not know his reasons for departing from the recommendation of the CAFCAS officer, Ms A. Yet again both parties appeared before the court unrepresented. It is not clear either from the face of the order or from the court file whether Ms A gave oral evidence at that hearing.

[50]As I noted at the beginning of this judgment, the father issued his present application on 12th September 2006, the very day upon which the section 91(14) restriction came to an end. In it, he says that he is 'seeking staying contact to give the child some real contact time with his Dad all in the best interests of the child. It is what the child wants.' The application has been before me for directions on four occasions, the last of these being 14th February. By the time of that hearing the guardian advised the court that R was struggling to cope with overnight stays lasting for two nights. I took the decision that pending the final hearing of the father's application the length of overnight contact should be reduced to one night.

[51]I turn now to consider the evidence. The guardian has filed one report. I ordered both parents to file a statement responding to the guardian's report and setting out their proposals for future contact. The father's evidence

[52]The father's statement is dated 27th April. It is brief. On the first page he sets out his proposals for contact in these terms:

'Contact should happen on alternate weekends. One weekend staying contact the other weekend daily contact. It is what the child wants and it is all in the best interests of the child. The Guardians proposals are speculation just like the proposals by Cafcass officers. Three different judges have dismissed the evidence by Cafcass officers and ordered staying contact in this case over the last 8 years.'

[53]The second page of the father's statement is headed 'Profile of the mother'. Attached to that page is a copy of an affidavit filed by the mother in March 1999 in support of her application for ancillary relief. The father explains his reasons for appending that affidavit in these terms:

'I have highlighted 12 counts of purjruy (sic) she has put her hand on the holly (sic) bible and sworn on oath, to tell the truth. But she has lied on purpose to make money and take me to the cleaners. To rip me off and con me out of thousands of pounds. The next 8 pages are hard rock solid evidence that she is a con women (sic), a money hungary (sic) gold digger, and it proves that putting her under oath and hoping her to tell the truth will never happen at all what so ever. Any thing she has to say about anything and every thing will be a lie. Nothing that come out of her mouth will be the truth. Nothing that she says in writing will be the truth.'

[54]In his oral evidence the father insisted that everything he wanted was 'all in the best interests of the child' – a mantra which he repeated several times. Although when pressed he accepted that the court should take account of R's wishes and feelings, he said that the guardian's account of R's wishes and feelings was mere 'speculation' which he did not accept.

[55]I asked the father what impact he thought the ongoing court proceedings were having on R. He said that if there is an impact then it is all down to the mother because she and her parents (with whom she lives) have always said that contact would have to be dealt with through the court. The only impact he thought there might be on R was that he did not like having to go to the CAFCASS office though even so far as that is concerned the father told me 'it is not my fault at the end of the day'.

[56]It is clear that the father still harbours immense bitterness at the outcome of the ancillary relief proceedings. He told me that he was initially awarded a 25% share in the net equity of the former matrimonial home. After that hearing he dispensed with the services of his solicitor and proceeded to launch an appeal. He pursued his appeal as a litigant in person and with some measure of success. At the hearing of the appeal His Honour Judge Corrie increased his share in the net equity to 48%. The father was particularly concerned about the fact that, as he saw it, the mother had salted money away with her own mother in order to keep it out of the ancillary relief proceedings. In total he believed that she had hidden around £10,000. According to him, the mother's deception came to light before the appeal hearing and that information contributed to his success on appeal. However, he remained dissatisfied. In his opinion the mother should have been awarded nothing. He complained to me that the mother had 'stolen half my house' and that he 'never got justice'.

[57]I record this part of the father's evidence simply because it is illustrative of the depth of his antagonism towards the mother and because it may indicate a motive for his repeated applications to the court concerning R. I make it clear that in so far as he accuses the mother of deception I make no finding.

[58]The father readily accepts that he has never at any time since the separation paid any maintenance to the mother to assist her with R's care. His position on that issue is that as a result of the ancillary relief order the mother has received £15,000 to which she was not entitled and he deems that to be, in effect, capitalised periodical payments for R. He repeated this in his final submissions this morning.

[59]I asked the father whether he had any respect for the mother. He told me that there is no need for him to have respect for her nor for her to have respect for him. It was clear from the general tone of his evidence that he has no respect for the mother, for the authors of the various section 7 reports, for the guardian or for some of the judges who have dealt with the contact issue over the years. He repeatedly referred to Judge Deeley and Judge Corrie as 'Deeley' and 'Corrie'. He was particularly disrespectful towards Judge Deeley. He told me that he watches the American judge, Judge Judy, on television and that in one of her 'shows' she apparently said that 'there are stupid judges out there'. In the father's opinion, Judge Deeley is one of them.

[60]In their cross-examination of the father both the mother and Miss Davies, counsel for R, put questions to the father about two letters he has written to the mother. In one of those letters, written on 20th October 2005, the father said 'Going to court over the last 7 years gives me great joy. In fact it gives me more of a buzz than sex. During the last 7 years I have beaten the following people in court: the mother of the child, the mother's solicitors, the mother's barrister and around three different district judges. It is fair to say that I am one hell of a man. I am Jim Garrison out of JFK. I have never paid a court fee. The money you stole of (sic) me in March 2000 it went all to your solicitor in fees. I am very happy and glad. I did not lose my house to you but I did lose it to TL your solicitor.' The father said that the mother had been making sarcastic comments about him and that in writing this letter he was just trying to wind her up. I have no doubt that he was trying to wind her up. I equally have no doubt that the sentiments he expresses are illustrative of the true motivation for his repeated applications to the court.

[61]The most recent letter is dated 11th November 2006, two months after this present application was issued. In this letter the father is highly critical of the mother's living arrangements and of her ability to provide adequately for R. He says 'On the whole R lives in disgrace and poverty. It is all the mothers fault…[the area where you live]…is a shit whole (sic) of a dump. The area is the lowest of the low. The area is full of losers and very poor people. BK it is fair to say that you are not made for mother-hood and you clearly can not cope…R has gone from riches to rags big time…starting 17.01.99 the date we separated…By the time R finishes his education and starts work he will end up with a shit job…It is in your best interest to let R live with me his dad. I can give him a bedroom and send him to a good school to give him an education. Get R out of poverty and back to riches…Me the dad of R comes from a family of winners. We are private landlords and own a number of houses…In August 1999 Judge Deeley gave the mother a residence court order. By doing so she condemned R life to strong poverty and disgrace. R has gone from riches to rags big time…[your home] is a very tiny small toy house located in a shit hole of a dump.

[62]The mother challenged him about this letter. The father continued to insist that R does live in poverty in a poor quality area 'and it is all your fault let it be known' he told her. He said that his observations about her home were 'fair comment'. He said that 'sometimes the truth hurts'.

[63]The mother asked him what effect he thought the proceedings were having on R. The father said that 'hearings ain't affecting R because he isn't here, it is affecting you more.'

[64]The father was equally dismissive of questions put to him by Miss Davies. Miss Davies began her cross-examination by explaining the guardian's recommendations. The father said that they are 'speculation' and that there is no reason to believe she was telling the truth. He said 'You are no different from CAFCASS. Your recommendations are speculation, they don't have to be right.' He said that in his opinion R is badly manipulated by the mother.

[65]As for the usefulness of visiting contact the father accepted that he has in the past been dismissive of this form of contact and has said that it is like throwing £30 into a sewer of rats. He did not accept that visiting contact could be used to help him to build a better relationship with R. He said that he did not accept that there were things that he could do to enable him to get to know R better. In his final submissions this morning he again said that on the whole contact since December 2002 (which is when Judge Deeley brought to an end the arrangement for alternate weekend staying contact) has been 'almost worthless'.

[66]Miss Davies put it to him that he had brought the case back to court every year since the separation in 1999. Although he accepted this he was insistent that doing so was 'all in the best interests of the child'.

[67]The last staying contact visit took place in April 2007. The father had taken R to his uncle's house in London. It is the mother's case that R had telephoned her late on the Saturday night to say that he could not get to sleep and that he had gone downstairs hoping there would be an adult to talk to but everyone was upstairs in bed asleep. The mother had suggested to him that he go and speak to his father but R did not wish to wake his father. The next morning he did not talk to his father about this problem. When he arrived home he told his mother that he had not felt safe or secure in his father's care. He was clearly upset. The father was asked about this episode. He accepted that R had not spoken to him about not having been able to get off to sleep. He was not aware that R had telephoned his mother. When Miss Davies pressed him on this he said 'you are just making things complicated. As for you lot, you just string the case out for years and years.'

[68]The father was asked about the prohibited steps order that prohibits both parents from taking R out of the jurisdiction. He was asked whether he would agree to it being lifted so far as the mother is concerned. He said that he would agree provided he was allowed to take R on a day trip to France by ferry since R has never been on a ferry before and had said he would like to go.

[69]In her report, the guardian recommends that there should be yet another order under section 91(14) but this time to remain in force until R reaches the age of sixteen. The father told me that he strongly objects to an order being made for such a length of time. The mother's evidence

[70]The mother has filed one witness statement. In it she says that she proposes a maximum of four one night staying contact visits to take place each year during school holidays. She says 'This contact is in line with R's wishes…It should be noted that R wants overnight contact to be flexible, i.e., when he is happy to go for it.' She agrees with the guardian's recommendation so far as a further section 91(14) order is concerned. She wishes the prohibited steps order to be lifted to enable her to take R on holiday abroad. In particular she would like to be able to visit family and friends.

[71]The mother has worked since 1995. She receives a salary of £19,500pa. She also receives child benefit and child tax credits. She receives no financial support from the father. In his final submissions this morning the father said that in his view the mother 'has it cushy'.

[72]The mother told me that she lives with her parents and her brother in a three bedroom semi-detached house. She and R share a bedroom. R is doing very well at school. He has recently been awarded a place at secondary school where he will begin in September. Both the mother and the guardian express concerns that although the father had known that R was sitting the entrance exam he made no attempt to find out how R had got on. He did not ask R. R did not volunteer the information. This is another indicator of the poor emotional bonding between father and son.

[73]The mother told me about the episode that occurred during the last staying contact in April which I described earlier. When he got back from the contact she put R to bed. When she went upstairs later she had expected to find him asleep. He wasn't. His eyes were swollen and there were tears in his eyes. He was overwhelmed. She tried to comfort him. He was particularly distressed knowing that he had already indicated to the guardian that he would be prepared to go for eight staying contact visits per year. The mother reassured him, telling him that he would be seeing the guardian again and would be able to discuss his concerns with her. The next morning he complained of stomach ache and did not go to school. The mother says that this is most unlike him because he normally hates missing school. I accept the mother's evidence concerning this episode.

[74]Against that background the mother was asked about the benefit of contact. She told me that R feels that he needs to see his father for her sake. He just accepts it. It has been happening since he was 2½ years old. In her view, R now feels that he simply does not have a choice about having to see his father.

[75]The mother was cross-examined by the father. It was perhaps no surprise that he should begin by putting questions to her about her final position. He clearly did not accept the answers he was given, saying to me 'she has lied under oath before and she will lie again'. The mother told him that she has now purchased a house which she is renting out. A little later the father said to me 'I'm sure she is lying about the house'.

[76]The father then asked the mother about her proposals for future contact. She confirmed her position to which he responded that all R would have would be 'a few lousy hours with his father'. The mother mentioned the issue of maintenance. There then followed a most extraordinary outburst from the father. He told me that he would appreciate it if the mother never brought up the question of child maintenance again. She is getting £130 per month from the government; she has a good salary; she had stolen money from him. It was just rough justice. He then went on to say that no mother deserves a cot death but in the case of the maternal grandmother she had deserved to lose her son. Leaving aside, for the moment, the fact that that was an utterly disgraceful thing for the father to say, it is a comment that in my judgment casts considerable light on the father's attitude to the mother and on the motivation for his repeated applications to the court. To her immense credit, the mother was able to maintain her composure in the face of that outrageous and wholly unwarranted outburst. The guardian's evidence

[77]The guardian, Mrs Alexander-Graham, has filed one report. She also gave oral evidence. It is appropriate to refer to her report extensively. At paragraph 13 the guardian makes the point that R 'appears to have a close relationship with all members of his maternal family. He supplied me with all their names and the correct spellings, and he could tell me about their interests and personalities…[However] he did not seem to have the same closeness with any member of his paternal family, including his father. For example, he did not know the first names of his paternal grandparents, and he did not know any of his father's interests. R knew the names of the cousins he sometimes stays with on overnight contacts, but he was not clear about their ages.'

[78]The guardian goes on to note at paragraph 18 that 'With regard to visiting contact, [the father] has quite often chosen not to take up this contact, with the result that contact has mainly taken place on a monthly basis rather than every fortnight. R has told me that he does not look forward to this contact, nor feel excited about it. He feels neutral about it.'

[79]I have already referred to R's last overnight stay with the father in April. R raised that issue with the guardian and told her exactly the same as he had told the mother. At paragraph 19, the guardian says that R 'told me that his mind started worrying that he might have to stay with his father six or eight times a year, and he felt he just could not cope with it.' She goes on to say at paragraph 21 that 'This staying contact visit, and R's feelings during the overnight stay, have had a big impact on his wishes and feelings in respect of future contact'.

[80]The guardian then goes on to record her discussions with the father. She says that he told her that 'having contact with the child during the day is just like "throwing £30 into a sewer of rats". He described the mother as '"a bitter and twisted woman" who has spent a great deal of money over the years, trying to stop him from having a relationship with his son'. The guardian says that she told the father that R had passed his exams for secondary school but that the father 'expressed no emotion about this',

[81]The guardian expresses concern about the father's ability to meet R's emotional needs – a concern which, as I have already noted, has been expressed by others in the past. The guardian acknowledges that the father has the capacity to meet R's physical needs during contact visits. However, at paragraphs 46 and 47 she says that of particular concern to her is the father's 'lack of capacity to meet any of R's emotional needs. In interviews with myself, he has been unwilling to listen to R's wishes, and has insisted that R is manipulated by his "bitter and twisted mother", and that she and the Court system have prevented him from having a relationship with his son. [The father] is unable to relate to R on an emotional or personal level, despite regular contact over the years. I am shocked about how little father and son know about each other…R is an avid Liverpool supporter, but he did not know if his father knew this, or which team his father supported, if any. Neither did he know if his father had ever worked, or at what job, or if he had ever been on holiday.' The guardian goes on to say that she is 'saddened by all the wasted opportunities which [the father] has had to forge a close enduring bond with his son, none of which he seems to have taken advantage of.'

[82]The guardian addresses the issue of emotional harm at length at paragraphs 51 to 53 of her report. She says that R '51…has suffered emotional harm in that he was distressed during a recent staying contact, and he was unable to seek reassurance from his father or any of the other adults present, because he has an insufficient connection with them.52. R is also at risk of emotional harm due to his father's attitude towards his mother, which has been expressed to me very forcefully. At present, there is no evidence that either parent makes derogatory comments about the other parent to R, but [the father] holds [the mother], her life, and R's life in such contempt, that there is always a risk that R will perceive his father's attitudes, and be upset by them.

53. In my view, R has suffered emotional harm due to the continual applications to the Court. His wish, over and above to win the lottery, or Liverpool Football Team to win the league, is for the applications to cease for ever. R worries about what will happen at Court, and his biggest fear is that he will have to see his father more often than he can cope with.'

[83]In the concluding paragraphs of her report, the guardian says that she 'shares all of the concerns noted in the past, and from my observations and enquiries, it would seem there has been no improvement in [the father's] willingness or ability to forge a close bond with R, and he has shown no capacity to meet R's emotional needs. This is all the more a tragic situation given R's personality, and his polite and positive nature… The father/son relationship is of a very poor quality, in my view, despite very regular contact over seven years, and the responsibility for this lies at the door of [the father], not the Courts or [the mother]. There is no evidence whatsoever, of any manipulation of R by his mother, or any imposition of a negative view of contact… It is my impression when speaking with R that he does not really have faith in the Court system, and he fears his views will be ignored. This is likely to stem from 2005 when he was very clear with the Cafcass Officers that he did not want overnight stays, and the eventual Final Order included four occasions of two night stays with his father. Also, during these Proceedings he has felt coerced to have a longer staying contact than he wished, although he has been grateful to the Court for agreeing to reduce the contact to one night only.'

[84]Reflecting the views expressed to her by R, the guardian recommends visiting contact for one Saturday every four weeks, and a maximum of four one night staying contact visits to take place during school holidays, spread out over the year. This recommendation for staying contact is qualified by the further recommendation that '69…this should only go ahead if R is happy for it to proceed and [the father] will need to use his best endeavours to ensure that R feels secure enough in his care to relax, and sleep well.' The guardian goes on to recommend that there be a further section 91(14) order to last until R is sixteen.

[85]Having heard the parents give their evidence, the guardian told me that she stood by the views and conclusions reached in her report. She describes R as being a really easy child to communicate with, bubbly and intelligent. To her mind this makes the father's failure to establish an emotional bond with R the more concerning. She had been shocked to find out how little R knew about his father's family. Although the father does not mention this anywhere in his evidence, at some point in or around 2002 he remarried though he is no longer living with his second wife. The guardian was clearly surprised at R's lack of knowledge about his step-mother even though he has clearly met her. The father's second wife had disappeared from the scene as silently as she had entered it. R did not know what had happened to her.

[86]The guardian told me that if there were an emotional bond between them then she believed it likely that R would probably ask for more contact. As she put it, R would have benefited so much from that and yet it has just not been forthcoming. I asked the guardian what emotional benefit R gains from contact with his father. The answer, perhaps unsurprisingly in view of the history I have set out, is that he gets no emotional benefit at all.

[87]The guardian was clearly very concerned indeed about the impact upon R of this constant litigation. She told me that the very first time she met R he had said to her 'if only it would stop'. It was clear from talking to R that the constant litigation is the only blight on his home life. Although R has not been to court he feels as if he is in court. The guardian told me that R is currently in a high state of anxiety about what the court will decide. She told me that she regards a long-term order under section 91(14) as being "crucial" to R's welfare'. The law

[88]The approach that I must take to this application is very clear. Section 1(1) of the Act provides that R's welfare must be the court's paramount consideration. Section 1(3) sets out a list of factors – the welfare checklist – to which the court must have regard. In addition to the provisions of section 1 the court must also have regard to the Article 8 rights of both the parents and R. Having taken all of these factors into consideration the court must endeavour to arrive at an outcome which is both proportionate and in R's best interests. Discussion

[89]Before I assess the evidence before me there are a number of general points I wish to make. I referred at the beginning of this judgment to the decision of Munby J in Re D (Intractable Contact Dispute: Publicity)

[2004] 1 FLR 1226

. The history of the case before me is as worthy of condemnation as that in Re D . In Re D at paragraph [24] Munby J lamented 'The fact that too often in such cases we only wake up to the fact that the case is intractable when it is too late for any effective intervention'. That observation is particularly poignant in this case.

[90]This case is illustrative of many of the current concerns about the way courts deal with intractable contact cases. It is appropriate to refer to some of them.

[91]The importance of judicial continuity in cases such as this is now well recognised. Its importance has been highlighted in a number of the important authorities reviewed by Munby J in Re D and in the President's Private Law Programme. In this case I find myself the thirteenth judge to be involved and the ninth Circuit Judge/Recorder. It is clear from the history I have set out that the lack of judicial continuity has, to put it at its lowest, been distinctly unhelpful in this case.

[92]There is current concern about the extent to which the voice of the child is adequately heard in cases such as this. The fact that a case is an intractable case is one of the circumstances listed in paragraph 3 of the Practice Direction (Representation of Children in Family Proceedings Pursuant to Family Proceedings Rules 1991, Rule 9.5)

[2004] 1 FLR 1188

which may justify the use of FPR rule 9.5. In this case the litigation had been ongoing for more than six years, had already involved twelve judges and had generated ten section 7 reports before the decision was taken to make R a party. I have no doubt that that step should have been taken much sooner.

[93]I am reinforced in that last view by virtue of the fact that at every hearing since August 2000 the parents have appeared before the court unrepresented. In the mother's case, because she in employment, it is clear that the reason for lack of representation has been because she is ineligible for public funding. In the father's case I suspect the reasons are more complex. Nonetheless, the lack of legal representation has some obvious disadvantages so far as the management of court hearings is concerned. For example, until NYAS became involved there was no comprehensive chronology before the court. The only way a judge could get a real feel for the overall history of the case was by spending time trawling through the ever expanding court files. Similarly, the court is greatly assisted in cases such as this by the availability of a hearing bundle. The importance of hearing bundles is well-illustrated by the most recent and very detailed Practice Direction from the President dated 27th July 2006. It is the separate representation of R in this case that has lead to the considerable assistance I have enjoyed from having a well-prepared hearing bundle and chronology – assistance that other judges who have dealt with this case have not had.

[94]There is also an issue about the ability of the system itself to deal effectively with intractable disputes. Professor Carol Smart has recently observed that despite various initiatives, including most recently an increasing emphasis on the voice of the child, conflict between parents 'does not appear to be abating; indeed it appears as if it is getting worse and the hostility that is part of the divorce process now seems also to be directed at the system (CAFCASS, the Children Act itself, judges etc) and not just the ex-spouse'. This is another observation that is borne out by the facts of the case before me. I have already noted this father's hostility towards not only the mother but also towards the CAFCASS officers who have dealt with the case, the guardian and various of the judges who have been involved down the years. He is highly critical of the system. He believes he is a victim of the system. Whilst I readily accept the shortcomings of the system identified by Munby J in Re D , I do not accept that it is the father who is the victim of those shortcomings in this case. In my judgment the victims are the mother and R, both of whom have been exposed to what has, down the years, become the increasingly abusive manipulation of the system by the father with, as I find, the deliberate intent of causing anxiety and suffering to the mother and with a total disregard for what might be described as the risk of 'collateral damage' to R. As for his condemnation of the system, I can do no better than refer to the words of Wall J (as he then was) in Re O (Contact: Withdrawal of Application)

[2004] 1 FLR 1258

at paragraphs [6](6) and (7) where he says that 'The court system for dealing with contact disputes has serious faults…Parents must, however, take their share of responsibility for the state of affairs they have created. Blaming the system, as the father does in this case, is no answer. He must shoulder his share of the responsibility for the state of affairs he has helped to bring about. All the evidence is that he has proved incapable of doing so.' Those observations apply with equal force to this father.

[95]The father believes that the courts are pro-mothers and anti-fathers. On that issue I once again refer to the words of Wall J. in Re O in which, at paragraph [6](3) he says that 'The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The court's task, imposed by Parliament in s 1 of the Children Act 1989, in every case is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of every child to the best of its ability.'

[96]There is also an issue as to transparency. The court's investigation into and judgment upon this intractable contact dispute, and in particular into the father's conduct, both towards the mother and R, has all been carried out under the shield of a process that determines such disputes in private. In Re D , Munby J. was concerned that the public should know about the underlying issues that had lead to what he described as 'a wholly deserving father' who had left his court 'in tears having been driven to abandon his battle for contact with his 7-year-old daughter'. In my respectful judgment, it is equally important to the process of informed public debate on issues relating to the family justice system that the public should be aware of the existence of cases such as the one I am dealing with in which, as I find, a father has abused the system with the direct intent of harassing the mother of his child. For my part, I would welcome greater transparency in the family courts.

[97]Having made those preliminary observations I turn now to a consideration of the evidence and appropriate outcome in this case. In assessing the evidence before me it is appropriate that I begin by considering the factors set out in the welfare checklist.

[98]Section 1(3)(a) requires me to have regard to R's ascertainable wishes and feelings considered in the light of his age and understanding. It can be seen from the evidence of the three CAFCASS officers who have prepared reports in this case and from the evidence of the guardian that R has increasingly expressed the view that he finds it difficult coping with staying contact. The two reports of Ms A in 2005 made it very clear indeed that CAFCASS did not consider staying contact to be in R's best interests and reported, accurately as I have no doubt, that R himself did not wish to have overnight contact. I have no doubt that there were good reasons why Judge Fletcher decided not to follow that clear recommendation though without sight of a transcript of his judgment I do not know what those good reasons might have been. What is clear, and I am entirely satisfied of this on the basis of the guardian's evidence, is that R felt very let down by the court in that his wishes were not followed – or as he may well have perceived it, not heard.

[99]At this hearing both the mother and the guardian tell me that R is agreeable to a maximum of four nights contact a year though on the basis that he does not have to go if he doesn't want to go. The guardian's view is that R is the kind of boy who tries hard to make the best of things. Although I am satisfied that R has said that he is willing to have four nights staying contact a year, I am confident that he has said this not because it is genuinely what he wants but for a mixture of reasons including perceiving this as supporting his mother, a misplaced loyalty to his father, a sense of duty and resignation to a belief that the court is likely to order staying contact no matter what he may say. In the light of the evidence before me the conclusion I come to is that it would be a considerable relief to R if he were not required to have staying contact with his father for the foreseeable future.

[100]As I noted earlier, it is increasingly accepted that the voice of the child must be heard in intractable cases such as this. Some children express concern about the risk that their views are edited or filtered when presented to the court by professionals. Some wish to see the judge for themselves. So concerned was I that R should be confident that I have heard his wishes that I offered to meet with him. The message came back to me through his guardian that he trusts the guardian to put his views to me accurately and that he would prefer not to come to meet me. I respect his wishes. I remain concerned that at the end of this hearing he should know that I have listened very carefully to his wishes and feelings. I trust that the guardian will be able to make time to go to see him again to explain my decisions to him.

[101]Section 1(3)(b) requires me to take account of R's physical, emotional and educational needs. In this case there are no particular issues about R's physical and educational needs. These are being met more than adequately. It is, though, clear that his emotional needs include knowing and experiencing the love of his parents and being protected from all kinds of emotional abuse including the abuse of being obliged to live in the middle of a battleground between his two parents and, as a part of that, being made the subject of repeated applications to the court and being obliged to meet all too regularly with a succession of professionals tasked with advising the court on his welfare needs.

[102]Section 1(3)(c) requires me to take account of the likely effect on him of any change in his circumstances. The change in circumstances proposed by the father is that there should be a dramatic increase in the level of staying contact. I have already indicated that in my judgment the evidence indicates clearly that this is not what R wants. The professional evidence of his guardian is that that level of contact would be not be in R's best interests. I am satisfied on the evidence that that level of contact would be deeply distressing to R and would be likely to cause him harm. I am equally satisfied that any reduction in the present level of contact would be likely to have a positive effect on R and would represent the removal of a source of stress that he has now had to live with for far too long. I asked the guardian for her view on what the effect might be of the court ordering a reduction in the present level of contact and perhaps no staying contact at all. She told me that she thought that would be fine provided R knew that he could have more contact if he wanted to. On that issue the guardian was confident that if R wanted more contact the mother would support him and would do her best to ensure that that happened. Having had the opportunity to assess the mother as she gave her evidence, I accept the guardian's views on that issue.

[103]Section 1(3)(d) requires me to have regard to his age, sex, background and any characteristics of his which the court considers relevant. R is almost eleven years old. He is about to go through a major change in his life when he moves from primary school to secondary school. As for his background, he has the good fortune to have a mother and maternal family who care for him very much indeed and who are very child-focused. However, notwithstanding the care he receives at home his background for the last eight years has been of living with the burden of ongoing court proceedings, a burden which has increased the older he has become and the more aware he has become of those proceedings. He desperately needs to have the shackles of this litigation removed from his young shoulders.

[104]Section 1(3)(e) requires me to have regard to any harm which he has suffered or is at risk of suffering. It can be seen from the guardian's evidence, evidence which I unhesitatingly accept, that R has suffered emotional harm as a result of the father's behaviour and that he is at risk of suffering further harm if this situation is allowed to continue. That is a view that finds an echo in the judgments of Judge Deeley. The father constantly repeats his mantra that everything he has done has been 'all in the best interests of the child'. Indeed, he repeated this in his closing submission this morning. I reject that submission very firmly. His conduct has been quite appalling. His lack of understanding of the impact of his conduct on R is deeply worrying. His lack of respect for the mother is a matter of concern. The father clearly believes that he has a right to contact with R and that the proposition that contact is in R's best interests is to be assumed. He is wrong. It is true that, as Wall J put it in Re O to which I referred earlier (paragraph [6](4)), the courts have traditionally taken the approach that 'Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative.' However, there is research evidence indicating that an approach that assumes that contact is almost always in the interests of the child is misconceived. One academic, Joan Hunt, has noted that 'Research does not, as is often said, show that contact is good for children. Rather, it says that children benefit where they enjoy good relationships with supportive parents who are able to protect them from their own conflicts.' The recent proposals made by the Family Justice Council in its Report to the President of the Family Division on the approach to be adopted by the Court when asked to make a contact order by consent, where domestic violence has been an issue in the case' recommends that 'A cultural change is required with a move away from "contact is always the appropriate way forward" to "contact that is safe and positive for the child is always the appropriate way forward". The key words are 'safe' and 'positive'.

[105]This father is not a supportive father. His detestation of the mother is as strong today as it was when the marriage broke down in 1998. That is apparent not only from the evidence of the guardian but from the letters he himself has written to the mother. It was particularly evident in the outrageous comment he made concerning the death of the maternal grandmother's baby son. By the time the father had completed his oral evidence he left me feeling profoundly disturbed by his attitude and demeanour. I have no doubt that the mother is equally disturbed. I am satisfied that in this case contact is nowhere near as positive an experience for R as it should be and that it does indeed cause him emotional harm. I am satisfied that unless there are substantial changes on the father's part then his behaviour will continue to cause R emotional harm in the future. It is, of course, the duty of this court to take proportionate steps to try to ensure that that does not happen.

[106]Section 1(3)(f) requires me to have regard to how capable each of the parents is of meeting R's needs. The guardian is satisfied that the mother is capable of meeting all of R's needs. So am I. I found her to be an impressive witness. Over the years, and despite the never-ending torrent of hostility from the father, she has done her very best to provide for all of R's needs, including doing that which the father appears to be incapable of, namely holding down a responsible job and earning sufficient money to enable her to meet R's material needs. I commend her for all that she has done.

[107]In contrast, I am equally satisfied that whilst the father may be capable of meeting R's physical needs whilst R is in his care, he is completely unable to meet R's emotional needs. That has been the case since the very moment the parents separated. There has been no improvement. Others, including Judge Deeley, have expressed great pessimism at the prospect of there ever being any improvement. Since this has now been going on for some eight years, I am satisfied that that pessimism is well-placed. The father's ability to meet R's emotional needs has not improved over the years and I see no sign of hope that it will improve in the future. Even in his closing submissions this morning the father's lack of insight and empathy was in full display. Indeed, in the light of the display the father gave in the witness box I fear the position is only likely to get worse. Although I hope I am wrong, it is clear that the decisions I have to make today must be made on the basis of the way things are and not on some groundless optimism that things are about to change.

[108]Finally, section 1(3)(g) requires me to take account of the range of powers available to the court under the Act. That brings me to a consideration of the ultimate issues that I must determine. Conclusions

[109]The present order for staying contact was made against the recommendation of CAFCASS. It was not what R wanted then. It is not what he wants now. The clear evidence before me is that there is no emotional benefit for R whatsoever in staying contact taking place whether at eight nights a year (as per Judge Fletcher's order) or at four times a year (as suggested by R and the guardian). The very clear conclusion I have come to is that this young man would feel immensely relieved to have the burden of staying contact removed. I shall remove it. I shall discharge the existing order for staying contact.

[110]The issue I find more difficult is the approach I should take to visiting contact. As I understand the guardian's evidence it is contact per se that is of no emotional benefit to R and not merely staying contact. If there is no emotional benefit for R in having contact with his father, should the court terminate all direct contact? I have considered this very carefully. I have come to the conclusion that, for the moment at least, that would not be appropriate. The guardian is not recommending such a drastic outcome. R has not asked for all contact to stop. There is a risk that if contact is stopped altogether then R may blame himself for that state of affairs. That would be particularly unfortunate in view of the distress he has already suffered as a result of these long-running proceedings.

[111]The guardian has noted that in the past the father has only taken up the opportunity of visiting contact on a monthly basis even though the present order allowed for visiting contact fortnightly. She recommends that the order should now reflect what has been happening in reality. I shall therefore order that there be contact on the first Saturday of each month, from 9.30am until 7.30pm beginning on 2nd June. I shall also order that in the future the father should be responsible for all of the travelling arrangements at both the beginning and the end of contact visits. Given his steadfast refusal to make any financial contribution towards R's day to day care, the burden of all of which falls upon the mother, I can see no good reason why the mother should be required to incur further expense in assisting with the travel arrangements.

[112]The third issue relates to the prohibited steps order. Because I do not have a transcript of the judgment of Judge Fletcher I do not know what evidence was before him that prompted him to make the prohibited steps order. On the basis of the evidence before me, I can see no reason why the mother should continue to be bound by that order. There is no evidence to suggest a risk of abduction. There is evidence that the mother would wish to take R on holiday abroad and evidence that R would welcome the opportunities that such visits would offer him. I shall therefore amend the prohibited steps order to make it clear that henceforth that order shall only apply to the father. The father asked for permission to take R on a day trip to France. The mother was very unhappy about that proposal and very concerned about the risks should the father be given R's passport. In the light of my assessment of the father I find the mother's concerns to be both understandable and reasonable. I do not consider that it would be in R's best interests for the father to be allowed to take him out of the jurisdiction, even for a journey as short as the day trip to France which the father has proposed.

[113]The final issue relates to the question of whether it is appropriate for me to make yet another order under section 91(14). History has shown that at the expiry of each of the four earlier orders under section 91(14) the father has very promptly made a further application to the court and on the last occasion did so on the very first day that he became entitled to apply. I have no doubt whatsoever that if I do make a further order today it is almost certain that the father will make another application as soon as he is free to do so. Indeed, in his closing submissions the father said to me 'I need to make applications yearly all in the best interests of the child'. It is the mother's belief, expressed very clearly in her submissions to me today, that the father uses the court process as a means of harassing her. I accept that submission.

[114]R starts secondary school this coming September. That will be an important transition for him. He should not have to face that change worrying about the risk of further court proceedings in the foreseeable future. In the past orders made under section 91(14) have been for no more than a year. This time the guardian recommends that the order should remain in place until R is sixteen; that is for a little over five years. Orders of that length are unusual and should only be made in exceptional circumstances. I have no hesitation in coming to the conclusion that this is an exceptional case. I shall, therefore, make an order under section 91(14) that the father shall not make any further application for any order under section 8 of the Act without the permission of the court and that order will remain in force until 30th June 2012.

[115]Judicial continuity is, as I noted earlier in this judgment, extremely important. I therefore order that all future applications relating to this child shall be reserved to me.

[116]Finally, I would like to express my thanks to NYAS and in particular to the guardian, Mrs Alexander-Graham for the care and thoroughness with which they have conducted this case. Not only has Mrs Alexander-Graham produced an extremely well-written and helpful report it is clear that she has also been able to build a relationship of trust with R which I have no doubt has been and continues to be very important to him.