C (A Child)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,MR JUSTICE MUNBY,LORD JUSTICE CLARK |
| Judgment Date | 21 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1293 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2004/0393 |
| Date | 21 July 2004 |
[2004] EWCA Civ 1293
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH HIGH COURT
(HER HONOUR JUDGE DAVIES)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Clarke
Mr Justice Munby
B1/2004/0393
MR JONATHAN SWIFT (instructed by GRYLLS & PAIGE, BANK HSE, WEST END, REDRUTH, CORNWALL TR15 2SD) appeared on behalf of the Applicant
MR PAUL STOREY QC (instructed by MESSRS HARTNELL CHANOT, ORIEL HSE, SOUTHERNHAY GARDENS, EXETER EX1 1NP) appeared on behalf of the Respondent
This appeal concerns a boy named S who was born on 19th February 1994, so he is ten years of age. His parents met in about 1987 and married in 1990. Both had children from former relationships. The mother's children are aged about 20 and 18 and live with her and her present partner. The father has good relationships with his older children and his wider family. On New Year's Eve 1996 the father subjected the mother to a violent assault. The assault extended to one of her older children. So at the end of the following year, almost a year later, he pleaded guilty to two counts of assault: one on the mother and one on the mother's daughter. He was placed on probation for 12 months and had to attend a programme aimed at reducing violence towards women.
He had issued his first application for contact in May 1997 and at a hearing in October 1997 there was a recommendation from what was then the court welfare officer for indirect contact on an interim basis. There was a full hearing in front of Judge Vincent, then District Judge Vincent. He gave judgment on 23rd January 1998.
Judge Vincent was critical of the father's adjustment to the crimes which he had committed. He did not accept that the father had truly appreciated the extent of his wrongdoing and he found that the father had a tendency to continue to attempt to justify himself and to blame the mother for the outcome. He found that the father was a threat to the mother and her health, but ordered indirect contact as frequently as possible with a review to take place in the summer of that year.
Dr Martin Gay, a child and adolescent psychiatrist, wrote a report in 1998 which was supportive of a move to direct contact at a contact centre. Accordingly, by January 1999 the court had ordered that there should be two supervised periods of direct contact.
The mother did not comply with that order, nor did she comply with a further order made in November 1999 for direct contact. Indeed she applied in that month for the discharge of the order for supervised contact. That application failed and the court invited the Official Solicitor to represent S. That invitation was not accepted under guidelines then current. The mother was at that stage receiving treatment from Dr Gallwey who, in his report, diagnosed her as suffering from post traumatic stress disorder.
By June 2000 the indirect contact had died out. On 25th October 2000 there was a hearing for the first time in front of HHJ Davies. She, by her judgment of 26th October 2000, provided for a resumption of indirect contact, a family assistance order and a review in August 2001.
There followed a serious suicide attempt by the mother, who subsequently agreed, however, that she would seek psychotherapy and that indirect contact should recommence.
At a further hearing in January 2001 the court requested a report under section 37 of the Children Act 1989 on S's welfare and whether there were sufficient concerns to trigger an application for either a care or supervision order. That report was requested on the judge's view of the risk of emotional harm to S. The local authority, having made their investigation, reported to the court that there was, in their view, no basis for a public law intervention.
In August 2001 CAFCASS Legal responded to the judge's invitation to act as S's guardian ad litem. CAFCASS Legal instructed Dr Hamish Cameron to give his advice. In his opinion of 22nd November 2001 Dr Cameron stated:
"The choice facing this family and the court is stark. Either all contact, indirect and direct, should stop now and only restart when [S] is very much older and expresses an interest in his father, or direct contact with some indirect contact should be started forthwith."
That advice was considered by Judge Davies at the four-day hearing in March 2002. The order that resulted from that hearing stated that (1) there be direct contact as proposed by Dr Cameron and Dr Gay, save that the first visit should take place during the Easter holidays, and (2) the second visit be during summer half term and a third during summer holidays. There was leave to disclose the court papers to the facilitators. Of the two alternatives proffered by Dr Cameron, the judge had opted for the more positive.
Sadly the judge's scheme failed, and the matter returned to the judge on 29th November 2002 when she ordered that the case be transferred to the High Court, but to remain before herself sitting as a judge of the High Court, a section 9 judge. She further directed that Mr Martin be appointed as S's guardian, with leave to instruct a solicitor and to instruct Dr Cameron to prepare a further report. At that stage Mr Martin replaced CAFCASS Legal. Mr Martin is an independent social work consultant who had previously been instructed by the father.
The mother's position over the following 12 months remained largely unaltered. She was resolutely opposed to the contact ordered. She removed S from school, educating him herself at home. These rather negative developments were to be reviewed at a further three-day hearing before HHJ Davies which took place on 30th September 2003 and the following two days.
At that hearing Mr Martin, on S's behalf, produced a report that identified three possible options for the judge's future order. The one that he favoured in his written report was S's removal from his mother's home and into care for the purposes of commencing contact to the father and to the father's wider family. The guardian identified S as living in an emotionally-besieged household.
Dr Cameron had reported in August 2003 to the effect that the mother should be sentenced and committed to a term of imprisonment for disobedience of the court's orders and that S should be then introduced to his father during that period when S would no longer be in his mother's care. That solution to an intractable problem found favour with no one, even the father made it plain that he did not support that outcome.
The judge at the trial had a fluid position in the oral evidence. By the time he testified, Dr Cameron, impressed by the judgment of Wall J in Re M [Intractable Contact Dispute: Interim Care Order] 2 FLR 636, supported the guardian's recommendation that S should be removed into care. However, Mr Martin, when coming to give his oral evidence, after others had testified, abandoned the option that he had favoured in his written report and strongly recommended that there should be no further attempt at contact between the applicant and his son for a considerable period, possibly throughout S's minority. In that shift he was distancing himself from and rejecting the advice of the expert that he had instructed. However, it is important to record that he fully accepted the diagnosis of Dr Cameron that S was suffering from emotional harm that was fully encapsulated, that is to say the emotional harm was restricted to the consequences of denial of contact with his father and his father's family and the consequences of being exposed to a characterisation of his father that was current in his mother's household.
The judge also had to consider a submission from Mr Martin that in order to facilitate the mother's psychotherapy, and in order to provide a future of stability and calm, a section 91(14) order should be made to restrict further application for contact for such period as the judge might think fit.
In her reserved judgment, delivered on 9th October, Judge Davies opted for the recommendation given by Mr Martin in his oral evidence and imposed a section 91(14) restriction for a period of three years from the date of her order.
Although the father gave written notice to the parties of an intention to apply to this court for permission no application was...
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