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Family Law

The leading authority on all aspects of family law

14 APR 2014

Re J-M (Contact Proceedings: Balance of Harm) [2014] EWCA Civ 434

The full judgment is available below.

(Court of Appeal, Maurice Kay, Black, Lewison LJJ, 8 April 2014)

Contact - Order for no direct contact - Appeal - Balance of harm

The father's appeal against an order for no direct contact was refused.

The 14-year-old boy lived with his mother and had not seen his father for almost 3 1/2 years. Litigation had been ongoing all of the child's life and there had been other long periods where he had no contact. In 2012 the father's application for direct contact was refused and indirect contact was ordered.

The father was granted permission to appeal to the county court on the issue of whether the harm of cessation of direct contact outweighed the harm arising out of attempting to initiate some form of contact against the child's wishes. The appeal was dismissed. Permission to appeal to the Court of Appeal was granted. The mother, supported by the children's guardian, opposed the appeal.

The appeal was dismissed. The judge had considered that it was likely to be detrimental to a child not to have some sort of direct contact with the parent with whom they did not live and that the court should not cease from striving to achieve this except when the end of the road had been reached, all reasonably available measures had been tried. Faced with an adolescent boy who had not the slightest wish to have a relationship with the father and did not even wish to have letters from him, the judge was entitled to determine that it would be harmful to continue to pursue contact between the father and child.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

__________________________________________________________________

Neutral Citation Number: [2014] EWCA Civ 434

Case No: B4/2013/2525

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE

HIS HONOUR JUDGE JOHN

SA11P50096

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Tuesday 8th April 2014

Before :

LORD JUSTICE MAURICE KAY

LADY JUSTICE BLACK
and

LORD JUSTICE LEWISON

- - - - - - - - - - - - - - - - - - - - -

Between:

J-M (CHILD)

(Transcript of the Handed Down Judgment of

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The Appellant Father appeared in person

Mr Chris McWatters (instructed by Gower Williams & Co Ltd) for the Respondent

Hearing dates: 25th March 2014

Judgment

BLACK LJ:

[1] This appeal concerns the question of a father's contact with his son, MX, who is 14 years old, having been born in November 1999. MX lives with his mother (M). The last time he saw his father (F) was in October 2010.

[2] The matter has a long history. Proceedings began when MX was just a baby and there have been a number of orders since then. Prior to 2009, there was a period of about four years when there was no contact between F and MX. In F's view, this was attributable to the malign intervention of M and her family who set out to alienate MX from him and to a conspiracy or conspiracies involving M's lawyers, his own lawyers, and a district judge.

[3] In 2005, MX was joined as a party with a children's guardian to look after his interests. A psychologist was instructed to report on the issues. A consent order made in March 2009 provided for regular contact between MX and F. F would collect MX from the home in Wales where he lives with M and they would go together to F's home in England. A further order was made in September 2010. It provided for a significant amount of staying contact. However, the contact planned for 27 December 2010 did not take place because there were weather-related transport difficulties and no contact took place thereafter.

[4] F applied in February 2011 to enforce the September 2010 order. That application came before District Judge Regan in November 2012. On 7 December 2012, the district judge refused F's application for direct contact, setting aside the existing contact order. He ordered that there be indirect contact by F sending MX a card and a present at Easter, Christmas and on MX's birthday, and M ensuring that F was sent a recent photograph of MX twice a year.

[5] F sought permission to appeal to the county court. On 8 April 2013, HHJ John granted permission "limited to the issue of whether the harm of cessation of direct contact in any form outweighs the harm arising out of attempting to initiate some contact against the child's wishes" (appeal bundle, page 147). He heard and dismissed the appeal on 7 June 2013.

[6] Judge John's formulation of the issue for which he gave permission to appeal drew in five of the six grounds that F himself had originally presented with his Appellant's Notice to the county court and subsequently also presented to this court. The sixth ground, which Judge John did not grant F permission to pursue, criticised the district judge for refusing an application for further expert evidence from a psychologist. When permission to appeal to this court was granted, it was, however, unlimited in its scope. Perhaps indulgently, we did not seek to reopen the question of permission on this "expert evidence" ground as we could have done under CPR Rule 52.9. We heard argument therefore on all the grounds that F wished to advance.

[7] In summary, the grounds of appeal were that the district judge:

i) wrongly failed to accede to the request for a further psychological report on the question of MX's wishes in relation to contact;

ii) failed to analyse whether MX's reported wishes were his genuine wishes;

iii) failed to analyse whether the temporary harm that would be caused in pursuing contact outweighed the harm that would be caused by the permanent separation of MX from his father;

iv) gave too much weight to MX's wishes and feelings and failed to take account of his inability to understand M's influence upon him;

v) was wrong to conclude that all reasonable steps had been taken to facilitate contact when there had been no attempt to test MX's reluctance to see F since contact broke down;

vi) wrongly allowed the implacable hostility of M to frustrate the contact order without sufficient reason to do so.

[8] A further issue, identified by the Lord Justice giving permission for the appeal to this court, was whether, in the light of the decision of the Supreme Court in Re B (A Child) [2013] UKSC 33, Judge John adopted an incorrect approach to the appeal before him by asking whether the decision of the district judge was "plainly wrong".

[9] F, who appeared in person before Judge John and before us, provided us with a comprehensive skeleton argument setting out the matters which he wished to advance in support of the grounds of appeal. He also addressed us orally, covering a large number of issues ranging over the whole history of the contact difficulties. From this, it was apparent that he feels aggrieved about much that has occurred. It is therefore important to note, at the outset of this judgment, that our function as an appeal court is not to retry the case as if we were first instance judges but to scrutinise the way in which the case was approached in the courts below to identify whether the criticisms made of the district judge's decision and of the circuit judge's approach are made out and if so, what should be done about it.

[10] The appeal was opposed by M who was represented by counsel. As a result of F failing to name MX as a party in his appellant's notice, MX's guardian was not served with notice of the appeal proceedings and was unaware until shortly before the hearing that they were on foot. She took the view that as her position was the same as M's, no public funding would be available for her to attend the hearing, and she was content that the appeal should proceed without MX being represented.

The hearing before the district judge

[11] M's case before the district judge was that MX did not want to see F or even have indirect contact with him. She said this was the child's own decision and she had not influenced him. F's case was that it was M's fault that contact was not taking place and that she had coloured MX's views and alienated him from him.

[12] F was represented before the district judge. At the outset of the hearing, his counsel applied for permission to instruct a psychologist to explore why MX was saying that he would not see F. The district judge refused the application for three reasons. First, it would cause delay because there would have to be an adjournment for the work to be done. Secondly, as the district judge put it, "there has been ample opportunity in the months leading to this hearing with the very detailed directions given for F to raise the matter" (§7). Thirdly, "on the papers at least, the wishes and views of the child are clearly represented by [the guardian] who has legal representation and has carefully sought to ascertain the child's views" (ibid). The district judge made clear, however, that he would consider in the light of the evidence whether there was a need for expert intervention and also that he was well aware of the gravity of the decision he was being asked to take and would carefully consider whether he could rely upon what was reported to him about MX's wishes and view.

[13] The district judge went on to hear both parents and the guardian. He did not see the matter in such stark terms as either of the parents and attributed blame for the situation to both.

[14] The following findings and observations are to be found in his judgment:

i) The guardian saw "a very appropriate contact session when the first gentle steps of contact took place" and F did all the right things with MX during his contact after March 2009 so one may have expected that MX would be keen on contact at least to some degree (§11) and that contact would have flourished even against the most difficult background (§12).

ii) M's feelings towards F came over in evidence as "venomous" (§9). She was hostile to him and could not be relied on to promote contact and "more than likely will give signals either deliberately or even unintentionally which have already greatly affected MX" (ibid).

iii) MX is largely reflecting M's feelings and disproportionate anxieties related to contact (§10); her antagonism has affected and influenced him (§12) and it is likely MX has been poisoned against him (§29).

iv) The wider maternal family are also not supportive of contact and have no good word to say about F (§12).

v) But M having poisoned MX against F is not the only reason why MX does not want a relationship with him (§29).

vi) M's mental health is fragile (§35). MX has "a close loving and protective relationship" with her. He had to live away from her with other family members when she was unwell in 2010/11 and that was confusing and difficult for him. He "was bound to be able to see the impact of the parental relationship on M and her health" (§17).

vii) It is understandable that a young teenager such as MX would prefer a quiet life free from the parental hassle that contact causes. He also loves his mother and seeks to protect her as a vulnerable person. He is brought into matters and shares M's burden (§12).

viii) Whether the reasons given by MX for not wanting contact are really his genuine reasons is open to question. MX cites F's racist views, missing M, finding unpalatable photos in F's drawer and F stopping at the betting shop to place a bet during contact, but those matters alone were not sufficient to lead MX to reject contact (§§14 and 15) and were not good reason to stop contact (§16). They have been used by M to turn MX against F (§14).

ix) Whatever the reasons, there are no signs of MX wanting a relationship with F (§28), "not the slightest spark for contact" (§32). At 13, he is close to making his own decisions. Certainly his properly expressed views are of considerable importance (§29).

x) F is committed and dedicated to MX "albeit misguided in some respects" (§21). He points to his attributes as a parent and "these qualities he no doubt shows" (§22).

xi) However, his behaviour causes concern (§19). He will not accept matters as they are. Symptomatic of his attitude is his failure to accept several criminal convictions against him which he intends to appeal (§20) despite the improbability of this succeeding (§31). He sees no fault in himself and sees contact as his right (§23). His failure to accept some of his past behaviour has had "an impact cumulatively on the child especially" (§31).

xii) MX has told the guardian that he wishes F not to write to him (§25). Some of the content of F's letters is "appropriate and child and age focussed" but many letters "contain comments and sentences which should never form part of F and child correspondence in these circumstances" including referring to issues between the adults and having a "dig" at M so that it is "not at all surprising that MX expressed a wish not to have further correspondence" (§§26 and 27). It is of considerable concern that F completely fails to acknowledge or recognise such material as wholly inappropriate when it is "blindingly obvious" (§28). "[T]he constant never ending criticism of M by F" has had an impact on MX (§31).

[15] The district judge evaluated the guardian's evidence (§33 et seq). The guardian recommended there be no contact at all, having been very much influenced by MX's wishes, given all he has experienced and his age. The district judge was conscious that F criticised the guardian for having taken MX's views at face value, failing to consider the impact of M's influence upon them, but he rejected that criticism. He found the guardian to have approached the case in a professional and expert way, not having taken things at face value. He said that the guardian started from the position of wanting to promote contact if possible. She had spent time with MX and been well aware of the issues. The district judge said that he had considered with the guardian during the hearing whether an attempt at supervised contact may work; the guardian had considered that but was emphatic that it would be pointless to try.

[16] There was no question of the district judge allowing M to dictate what would happen about contact. He said (§35) that "if contact is ordered the fact she may not like it is no reason not to so order as it is the child's welfare applying s 1 Children Act which is paramount". He also said that the fact that M has no wish to promote contact "would naturally lead the court to go behind such objection and if needs be taking strong enforcement action" (§36). But he thought it pointless even to try to force MX to go on contact because he would not do so unless he decided to do so. He thought even some observed contact was "doomed to fail and may cause more harm than [it is] worth". In so saying he was mindful that the effect of an order for no contact was to deprive F of any meaningful relationship with MX "which is the gravest of consequences and should only be made as a last resort" but here, in his judgment, there were cogent reasons to terminate contact. He found that all necessary steps had been taken over "many long years" to facilitate contact and that forcing MX to see his F against his clearly stated wishes would cause him harm.

[17] The district judge did not agree with M and the guardian about indirect contact which they would have had stopped. He thought it necessary for MX to appreciate the importance of F in his life and to have a possible channel to communicate with him. However, he refused to permit letters (as opposed to cards and presents) because F had not corresponded appropriately before.

The hearing before Judge John

[18] Judge John approached the appeal on the basis that the decision taken by the district judge was an exercise of a judicial discretion and therefore not to be overturned unless he erred in law, took into account evidence he should not have done, ignored evidence he should have taken into account, or was plainly wrong.

[19] F wished to adduce new evidence, including about telephone calls he said he had received from M after the hearing before the district judge. The judge refused to admit that evidence because it post-dated the hearing before the district judge, it was hotly contested, and it would not alter the situation.

[20] The judge found that the district judge had seen MX's position "for what it was". It was, the judge said (CJ§25):

"the complex product of years and years of this enduring experience. It was far from a simple equation of brainwashing alone, leading to this unequivocal opposition. There were many ingredients in it...."

[21] He also found that the district judge was very much alive to the cessation of contact being a last resort, that he had the issue of the harm that it might cause to MX uppermost in his mind (CJ§28 and see §29) and that he had a clear grasp of MX's position (CJ§34) and had considered the implications of attempting to go forward in the teeth of his opposition (CJ§36(iii)).

[22] He concluded that the district judge had not misdirected himself on the law and that his conclusions could not be said to be plainly wrong. Furthermore, by his "careful consideration and application of the ‘welfare checklist' and all the welfare principles in this, he has thereby given due consideration to the Article 8 rights involved of everyone, including MX" (CJ§37).

Discussion in relation to the issues arising on this appeal

Re B and the proper approach to appeals of this type

[23] The proper approach to an appeal against an order that there should be no direct contact between a parent and child has been set out by McFarlane LJ in Re A (A Child) [2013] EWCA Civ 1104, commencing at §42, in which he considered the implications of the Re B decision which had been given on 12 June 2013.

[24] As he determined F's appeal on 7 June 2013, Judge John did not have the advantage of either Re B or Re A. It is not surprising therefore that he used a traditional formulation to describe his approach, treating the district judge's decision as an exercise of judicial discretion and looking to see whether the district judge was "plainly wrong". As can be seen from the two authorities to which I have just referred, the proper approach is to treat the district judge's determination as an exercise of judgment. In reviewing that determination on appeal, the court must focus not just on the judge's exercise of his discretion but also on his compliance (or otherwise) with the obligation under the Human Rights Act 1998 s 6(1) not to determine the application in a way which is incompatible with Art 8 rights that are engaged. The appeal court is looking to see whether the decision of the lower court is "wrong", the epithet "plainly" which featured in the traditional formulation having been abandoned, post-Re B, as inappropriate or otiose.

[25] It does not follow that Judge John's use of the traditional formulation necessarily invalidated his decision. In my view, it did not. He plainly had in mind Art 8 and the need to be sure that the district judge's order was not incompatible with it. This can be seen not only from his express mention of Art 8 in §37 of his judgment but from his judgment more generally. The approach to determining contact cases such as this one which is established by the domestic authorities is aligned with the relevant ECHR case law. Judge John cited the pertinent cases, including Re W (Children) [2012] EWCA Civ 999 in which a useful review of the case law on refusing parental contact can be found. He confirmed that the district judge had had regard to the appropriate principles, as undoubtedly he had, his extensive citations from Re P (Contact: Supervision) [1996] 2 FLR 314 and Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912 having included the following propositions:

i) the welfare of the child is paramount;

ii) it is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living;

iii) there is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact;

iv) excessive weight should not be accorded to short term problems and the court should take a medium and long term view;

v) contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child's welfare.

[26] He then asked himself whether the order that the district judge made for the cessation of contact was consistent with the principles (CJ§18), carefully reviewing the district judge's judgment in order to answer that question.

[27] By the conclusion of his judgment, therefore, whatever Judge John's formulation of his approach to the appeal, his scrutiny of the district judge's determination had covered the ground contemplated by the Supreme Court in Re B.

The application for a psychologist's report

[28] Expert evidence in cases concerning children is strictly regulated by Part 25 of the Family Procedure Rules 2010. At the time of the district judge's decision not to permit the commissioning of a further psychological report, Rule 25.1 provided that expert evidence would be restricted to that "which is reasonably required to resolve the proceedings". From the end of January 2013, expert evidence is restricted to that which "is necessary to assist the court to resolve the proceedings". One of the district judge's reasons for refusing the application was that, at least on paper, it appeared that the ground had been covered by the guardian (§7). He might equally have put it that the expert evidence was not reasonably required to resolve the proceedings. The other two reasons that he gave ("delay would be caused" and "ample opportunity in the months leading to the hearing ....for F to raise the matter") reinforced this reason for refusing permission. In refusing, the district judge made it quite plain that he was acutely conscious of the gravity of the order that he was being invited to make in relation to contact and of the need to consider carefully whether he could rely upon what was reported to him as to MX's wishes. He also said that he would keep the question of expert intervention under review.

[29] District Judge Regan's decision whether or not to permit the instruction of an expert was a case management decision and case management decisions are particularly difficult to dislodge on appeal. District Judge Regan's approach to the issue was entirely proper, in my view, and I would not interfere with the decision that he took.

The balance of harm (incorporating grounds (ii) to (vi) set out in paragraph 7 above)

[30] It is not the function of this judgment to restate the whole of the argument which F laid before us, both in writing and orally, and which, of course, we have taken fully into account. What I propose to do here, in order to demonstrate the overall structure of his case, is to note some of the topics upon which he laid particular emphasis.

[31] Prominent among these topics was that of the telephone calls that F said M had made to him following the hearing before the district judge. On his account, her behaviour during the telephone calls had been very variable. Sometimes she was very talkative, she had said on occasion that she loved and missed him, and she said she would like him to live in a house which was empty next door to her and MX and then he could see the two of them whenever he wanted. On other occasions, he said, she was negative and, for example, she disparaged his mother who had died not long before. He said she admitted lying in court to the district judge.

[32] F argued that Judge John should have admitted evidence of the telephone calls, which F perceived would have changed the outcome of the case. I cannot agree. The reasons that Judge John gave for refusing to admit the new evidence were valid ones. F acknowledged to us that M may contest the evidence. Judge John was entitled to say, therefore, that admitting the fresh evidence would lead to "another hearing at which F would contend vigorously that these telephone calls .... had been made, M would deny it with equal vigour, and all that would be revealed to the Court is that the hostility between the parents remains as febrile as ever. It would do no more than re-emphasise the basis upon which District Judge Regan reached his decision in the first place" (CJ§40).

[33] F understandably stressed to us that he has much to offer to his son and that there had been good contact in the past. He submitted that he was a blameless father with a right to contact. In contrast, he was very critical of M and perhaps even more so of her parents whose "obsessive interference....over the last 12 ½ years" he said had robbed him and MX of quality time with each other. He submitted that the maternal grandparents, the judges in the courts in Wales and the present CAFCASS guardian, were against him because he was English. He wished to have reappointed the previous CAFCASS guardian and the psychologist who reported earlier. As I said at the start of this judgment, he argued that there had been a conspiracy or conspiracies against him with the conspirators including, amongst others, his own solicitor and a district judge who dealt with the case in its relatively early stages.

[34] F submitted that M's presentation to the district judge had been nothing but a performance as, he said, she had acknowledged during the telephone calls. I think his submission was that her attitude to contact was part of a planned campaign of vindictive behaviour towards him, which included not only doing anything she could to stop him seeing MX but also lying to the police and about child support. He saw the maternal grandparents as enthusiastic supporters, or even initiators, of the campaign. He also invited our attention to M's mental health problems which he said made her unsuitable to bring up a child, taking us back to examples from before MX was born.

[35] He submitted that contact should not have been brought to an end before his contact with MX had been observed so that it could be seen that there was in fact a good relationship between his son and himself. He proposed that this observation should be done by the previous CAFCASS officer and should include an outing of the type that had taken place before to the park. This would enable people to see MX's genuine wishes, removed from M's influence. The proper order, he said, was a direct contact order with a provision for residence to transfer to him if M failed to observe it.

[36] F laid all the blame at the maternal family's door. He did not accept that there were any grounds to criticise him. He could not see that the letters he sent to MX were unsuitable in any way. Copies of some of the letters were in the appeal bundle and, having seen them, I endorse the district judge's assessment of them (see §14 xii) above) and his concern that F could not see that anything was wrong with them when it so obviously was. The district judge's concern about F's attitude was based on broader foundations than just the letters and nothing emerged from the hearing before us which caused me to question the district judge's view, indeed quite the reverse. The district judge properly recognised F's commitment and dedication to his son and his attributes as a parent but he was bound to proceed upon the basis that that was only part of the story. This was not a case of one parent who was unimpeachable, with the blame for the problems over contact attaching entirely to the other parent.

[37] No two cases are the same, of course, and the substantive decision in one case is rarely of great assistance in another even if the facts superficially appear to be similar. That is not to say that there is no guidance to be obtained from decided cases and I have given particular consideration here to Re A [2013] (above) which might at first sight seem to bear some resemblance to this case. However, it is soon obvious that it is different from the present case in at least one important respect, namely that the father in Re A was "an unimpeachable father" (Re A §4) whereas the situation here is considerably more complex.

[38] I am quite satisfied that the district judge had firmly in mind that he should not be deflected by the immediate problems from pursuing for MX the longer term benefit of a relationship with his father. To put it another way, he was well aware that it is likely to be detrimental to a child not to have some sort of direct contact with the parent with whom they do not live and that the court should not cease from striving to achieve this except when the end of the road has been reached, all reasonably available measures having been tried. He did not overlook the existence of appropriate contact in the past or any of the good things that could be said of F's commitment to MX. He certainly did not overlook the part played by M's attitude, which he could hardly have described in more pejorative terms, or the role of the maternal grandparents. He was not too readily deterred from further attempts to get contact going again, rejecting in terms the idea that M could be allowed to sabotage contact.

[39] But he was faced with an adolescent boy who had not the slightest wish to have a relationship with F and who, having had correspondence from F which demeaned his family, did not wish, for understandable reasons, even to continue to receive letters from him. As MX said to the guardian in June 2012 (quoted in the annex to the guardian's position statement of 15 June 2012):

"another thing, my father does not like my family - I love this family and if he doesn't like this family, he should leave us alone"

[40] The advice of the guardian was that there should be no more attempts at contact. In accepting that advice, the district judge knew that the guardian was criticised by F for taking MX's views at face value. It can be seen from his judgment that he evaluated the guardian's evidence critically, together with all the other evidence that he had read and seen. He demonstrated that he did not adopt an unquestioning approach to her advice by his reasoned rejection of her opinion that there should not even be indirect contact and that there should be a section 91(14) order. However, overall he clearly found her an impressive witness and he was entitled to conclude, as he did, that she had the expertise to assess the situation accurately and had done so.

[41] As for the possibility that there should be some observed contact, the district judge recollected that this had been successful in years past but, having considered the matter with the guardian, he was persuaded that it would be pointless to try again because (§37) there was no reasonable prospect of observed contact being possible.

[42] He concluded that "without this 13 year old child supporting and co-operating" (§36), direct contact could not be pursued further. He took the view that in the circumstances of this case, it would be harmful to MX to force him to see F against his clearly stated wishes. This view represented his final balance, after considering the whole picture including the harm that MX would suffer from not seeing F. I do not consider that there can be any valid criticism of his conclusion or of the route by which he reached it.

[43] It follows that rigorous examination of the two judgments of the courts below does not reveal to me any errors, whether in the balancing of harm or in any other respect, which require the interference of this court. I would therefore dismiss F's appeal, with the result that the district judge's order would stand.

LEWISON LJ:

[44] I agree.

MAURICE KAY LJ:

[45] I, too, am in complete agreement with the judgment of Black LJ. In the difficult circumstances of this case I am entirely satisfied that District Judge Regan was entitled and, indeed, correct to conclude that the best interests of this sensitive but battle-weary teenager required the cessation of direct contact at this stage. I should also add that all three members of this Court were favourably impressed by the way that District Judge Regan and Judge John (who cannot be blamed for not anticipating Re B (A Child)) dealt with the complex dynamics of this case. It received the conspicuously fair and thorough treatment which it merited.

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