A (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Christopher Clarke,Lord Justice Richards |
| Judgment Date | 17 June 2015 |
| Neutral Citation | [2015] EWCA Civ 910 |
| Docket Number | B4/2014/3223 |
| Date | 17 June 2015 |
| Court | Court of Appeal (Civil Division) |
[2015] EWCA Civ 910
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT AND FAMILY COURT
(HIS HONOUR JUDGE ATKINS)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Richards
Lord Justice McFarlane
Lord Justice Christopher Clarke
B4/2014/3223
In the Matter of
Mr J Adler (instructed by Robinsons Solicitors) appeared on behalf of the Applicant Father
Miss J O'Malley (instructed by Blackfords LLP) appeared on behalf of the Respondent Mother
Miss S Early (instructed by Gill Turner Tucker) appeared on behalf of the Child's Guardian as Second Respondent
This is an appeal in the course of very long running proceedings with respect to a boy, "B", who is now aged 12 years. The principal issue that occupied the lower court and is now the focus of this appeal is the question of re-starting contact between the boy and his father after a protracted break in a context where B and his primary carer, the Mother, have significant psychological and/or emotional vulnerabilities connected with the very issue of contact. In the event, the judge, His Honour Judge Atkins, sitting at the Family Court in Croydon on 17th September 2014, concluded that it was inappropriate to make any order for direct contact at that time but he did make an order for limited indirect contact. It is against that decision that the Father now brings this appeal, which comes following a grant of permission made by me on an earlier occasion.
There have been supplementary issues before this court relating to altogether smaller matters in the case, but each not without its own internal importance. The first is whether the Father should be given the details of B's general practitioner so that he can be kept informed of the boy's general health and well being. Initially that was contested before the judge and was an issue to be raised within the appeal. Fortunately, the parties have used the opportunity of the short adjournment to have a discussion on this and there is now agreement, and indeed as I understand it the Mother has now disclosed the relevant details to the Father, subject to an undertaking by him that he will not use that information to seek to obtain the Mother's home address. The Mother also has agreed that she will provide the Father with details of any change of GP as soon as that happens, and in any event she will include that information during the thrice yearly updates about B that will be provided by her if the judge's order remains in place.
The second issue is what, if any, information should be given to the boy's school arising out of the judge's judgment. Of course in part that depends upon the decision that my Lords and I take on the appeal itself, but the position of the Father is that at the very least a summary of the judge's judgment prepared by the children's guardian, who represents B's interests in the proceedings, should be drawn up and supplied to the school. The Mother questions the value of such a document and certainly would wish to be able to see a draft of it before agreeing. She does indicate that limited information might go to the school, but she, as indeed are my Lords and I, is considering that matter in a vacuum as no such summary of the judgment currently exists.
In order to describe the circumstances that led to the hearing before the judge, it is, I am afraid, necessary to go some way back into the background. Having made that apology, I do not in fact apologise for looking at the detail because it does seem to me that matters went awry on a number of occasions in the course of proceedings with respect to B and that there may be lessons to be learned more generally for those involved professionally in the family justice system from what has transpired in this case.
B's parents met when the Mother, who is an English lady, was still only 19 years of age. The Father, who is ten years her senior, is of Arabic/Palestinian extraction, but was already living in England and Wales when they met. B was born on 19th March 2003 and therefore is, as I have said, now aged just over 12. The couple married, as I understand it, after it became apparent that the Mother was expecting a child. That marriage was in August of 2002 and the couple, together with young B following his arrival, remained together until August 2005, when they finally separated. Initially the Father had some contact with B by seeing him during the day for an hour or so on two occasions each week. However, that came to an end on 22nd January 2006, a circumstance which triggered his application to the court for a contact order under section 8 of the Children Act 1989. At the same time, and I think on the same date, the Mother applied for an injunction under the domestic violence legislation.
Within the Children Act proceedings the court commissioned a report from CAFCASS, and it is informative to look at the information that the CAFCASS officer was able to glean in the course of her investigations. It was a full report on the issue of B's welfare and the principal aspect of the case that struck the CAFCASS officer was the "extremely strong attachment relationship" that B had with his Father, as observed by the CAFCASS officer during one occasion of observed contact which took place on 29th August 2006. The CAFCASS officer, with some prescience as matters have turned out, offered this view at paragraph 6.7 of her report:
"It is my view unless [B]'s parents take active responsibility in supporting their son's attachment to each of them, [B] will continue to experience conflicting emotions regarding contact with his father."
The Mother's position at the time of the CAFCASS officer's initial involvement was to be opposed to contact at that stage.
The overall recommendation of the officer in her first report was that regular fortnightly staying contact every other weekend should be established between this still relatively young boy and his Father, and that was her recommendation made in a report dated 26th September 2006. That date is not without significance because some two days later it is apparent that the maternal grandfather reported to social services that B had been telling his mother that the Father had made threats to kill her and to kidnap B during some of the contact time that he spent with the Father. The CAFCASS officer asserted that no information of that sort was given to her during the course of her initial investigation.
The next matter of note was that on 11th February 2007 the Father was apparently some two and a half hours late in returning B at the end of contact and had taken him on a car journey which involved collecting a car at Heathrow Airport. Both the lateness of the return and apprehension on the Mother's part that B might be removed from this jurisdiction by the Father led her to stop contact at that time, and that indeed, 11th February 2007, some eight years ago, was the last occasion that the Father saw the boy until contact was re-established for some short duration during the court proceedings.
The Mother also informed the CAFCASS officer in detail of what she had heard from B, reporting what the Father had apparently said during contact. The report includes the following quotations in that regard:
"mummy is going to get burned in the fire" "[Father] says you will get dead and cutted and go in the fire, your toes and fingers will get cut."
The Mother reported that B seemed to be currently obsessed with the topic of dying.
Further reports at that time in mid-February 2007 were made by the Mother to the local social services, the police and the NPSCC. Again, it is of note that on 6th March 2007 a social worker visited the Mother and B and as a result of that one visit made a referral of the Mother and the boy to the local Child and Adolescent Mental Health Service (CAMHS). In the event, as I understand it, that assessment was never taken up, but to my eyes it is striking that a social worker, on the back of one visit in 2006, would make such a referral about such a relatively young boy.
Despite the passage of events that I have described, the account of contact between B and the Father, when they were together on the limited occasions provided by the court order, remained positive and B had indicated to the CAFCASS officer "very clearly" his wish to have contact with his father. The recommendation therefore was to postpone any determination on contact whilst further assessment was undertaken, either through the referral to CAMHS or in some other way.
Pausing there, I have been struck in reading the papers by the very positive account of the Father's relationship with B at that time. Particularly, as it is common ground, that the relationship between the parents when they were still together was relatively volatile, involving certainly verbal altercations between them. It is also striking because the couple had separated in 2005, and so, for the boy, a year or more later, still to behave in such a warm and close way with his father, expressing a keen desire to see him.
Matters, however, moved on, and when the matter came before the court on 13th April 2007 the Father, rather than seeking either an adjournment for further assessment or for substantive contact orders, asked the court to give him permission to withdraw his application for contact, and that, on 13th April 2007, was the order that was made. The Father has subsequently in a statement in the current proceedings described the circumstances that led him to ask the court to withdraw the application, and in short terms he...
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Q (Applicant father) v R (Respondent mother) S and T (through their guardian JO) (Second and Third Respondents)
...(Re B [2013] UKSC 33 at paragraph 215). 71 I have been referred to another judgment of McFarlane LJ's, also called A:— A (A Child) [2015] EWCA Civ 910: '51. So the judge was faced with the stark choice that I have described, and the third point I make is that in the end there really was no......