M (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Beatson,Lord Justice Lloyd |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWCA Civ 969 |
| Docket Number | Case No: B4/2012/2899 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2013 |
[2013] EWCA Civ 969
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Sheffield County Court
His Honour Judge Jones
SE12P00245
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Beatson
and
Lord Justice Ryder
Case No: B4/2012/2899
Mr Michael Bailey (instructed by Irvine Thanvi Natas Solicitors) for the Appellant Father
The First Respondent Mother in person
Ms Shona Rogers (instructed by A & N Care Solicitors) for the SecondRespondent Child by his Children's Guardian
M is a young man who was born on 26 July 2002 and is now 11 years of age. He is represented in these proceedings by a children's guardian. His father is PM and his mother is MB. His parents are not married and have separated. Although father's name appears on M's birth certificate, that pre-dated the change in the legislation in 2003 so that he does not have parental responsibility.
This is father's appeal against the order of His Honour Judge Jones sitting in the Sheffield County Court on 16 October 201The applications before the court were those of father for parental responsibility and direct contact with his son. The court refused to grant parental responsibility, dismissed the application for direct contact and made orders for indirect e-mail contact and under section 91(14) of the Children Act 1989 [CA 1989] that no application may be made by father for an order under the Act for a period of two years. Father appeals with the permission of McFarlane LJ. Permission was limited to the parental responsibility and section 91(14) decisions. Both mother and the child through his children's guardian oppose the appeal.
The background circumstances to this appeal can be taken from the judgment of Judge Jones and from the very helpful skeleton argument filed on behalf of M. The parents began a relationship in 2000 and separated in February 2007. Father continued to have a significant relationship with M until he sent mother an e-mail on 1 December 2008 saying "I'm finished inside" and "I think my life is done now". He went on to say that mother should keep M and he would not be able to see him for a while. Although mother accepted that position, within days father changed his mind and on 17 December 2008 father removed M from school without notice to mother. Father disappeared with M. He did not return to his own home and he avoided telephone contact with the police. When eventually contacted by them, he refused a request for a welfare visit. M was returned to school the following morning. Whether father realises it or not, this was a defining incident for mother and for M.
Mother issued proceedings on 19 December 2008 for a residence order, an order that father have no contact and a prohibited steps order. Within those proceedings, father gave an undertaking and supervised contact began. Between 22 December 2008 and late February 2011 when direct contact ceased, father had contact with M in a supervised contact centre. On 28 February 2011 a contested hearing began in the Sheffield County Court. The following day, father summarily refused to participate and asked for permission to withdraw his applications, thereafter leaving the court not to return. Her Honour Judge Carr granted a residence order to mother, refused father's application for permission to withdraw, made no orders as to parental responsibility and direct contact and granted a section 91(14) order against father for two years. M has not seen his father since. Father appealed to this court which on 14 March 2012 set aside the section 91(14) order and on the understanding that father would make fresh applications to the court, remitted the matter to the county court ( [2012] EWCA Civ 446, Thorpe and Etherton LJJ and Henderson J).
On 22 March 2012 father issued applications for contact and parental responsibility. He was represented before Judge Jones as he has been in this court although he dispensed with the services of his counsel in the court below causing an adjournment for just over a week to allow his solicitors to instruct fresh counsel. Father wanted unsupervised direct contact with M every weekend leading to staying contact. Mother was and is a litigant in person and M has been represented by his solicitor in the court below and by counsel in this court, through his children's guardian. They both opposed direct contact for and the grant of parental responsibility to father. The section 91(14) question was re-raised by mother at a case management hearing before Judge Jones leading to a recital that it would be decided at the final hearing where an order was recommended by the children's guardian.
In order to put the decisions that were made into context it is important to understand that Judge Jones heard evidence from father, mother, the children's guardian who communicated to the court the wishes and feelings of M and also from a single joint expert, Dr Croxon, who is a psychologist. Although much of the written and oral evidence related to the contact question, the findings and value judgments that were made by Judge Jones are material to the decisions under appeal.
Father does not know M's home address or current school. M would like to keep it that way. He was described by his teacher as a popular boy who is emotionally immature with low resilience although his self-esteem and confidence are improving. The guardian described him as articulate and well able to express his own wishes and feelings. In July 2012 he wanted his father to write to him. At that stage father would usually write long typed letters. M wrote a letter to the judge at that time in which he said: "I do want to see dad with supervision and I do miss him". By 24 September 2012 and in preparation for the final hearing before Judge Jones, the guardian recorded that M did not want to write a further letter to the judge, but wanted him to know that he did not want to see his father straight away. He said he would not mind seeing his father when he is older and would still wish for the contact to be supervised. He was scared that his father might be angry with him and shout at him. He wanted to know whether the court had stopped indirect contact (which it had not) because he had not received anything from his father since before June 2012 including on his birthday.
The judge accepted the expert opinion before him that there was no evidence of any significant emotional pressure being placed on M by mother in respect of his relationship with his father. The judge rejected "any suggestion from the father that this is a state of affairs [that] has been brought about by the attitude and actions of the mother". The judge found that mother "understands the importance to [M] of maintaining and developing a close and loving relationship with the parent with whom he no longer lives". He also found that mother had made efforts to support contact but that she had been "considerably distressed by, and has struggled to understand, the entrenched and blinkered attitude of the father". The judge accepted the guardian's opinion that the proceedings had had an enormous impact on M who felt responsible for expressing his views honestly and was disappointed at the "massive change" for him when father stopped writing.
The court accepted the evidence of Dr Croxon about father which was as follows:
"the father presents as an individual who is rigid and inflexible in his thinking, being egocentric and preoccupied, displaying a certain degree of paranoia, traits that are likely (to be) linked to his personality functioning…
The father appears to be an individual who can be defiant, unco-operative and difficult to get along with when he perceives others disagreeing with his views or if they fail to meet his needs in some way…He believes that others are persecuting him, being unable to reflect upon his own actions or responsibility…
When his relationship with the mother broke down, the father struggled to accept this, remaining enmeshed, attempting to seek to have his needs met by the relationship, albeit in a different form. …the father continues to display narcissistic, paranoid tendencies and remains unable to see issues from any perspective other than his own. He continues to see himself as blameless, portraying himself as a victim of parental alienation and a corrupt system in which professionals are biased and take sides and his rights as a father are violated. […]
the locus of enmeshment may well now have shifted to [M] as the father has evolved an idealised view of their relationship and is now preoccupied with the 'fight' to have contact with him."
Dr Croxon advised that contact would need to be strictly supervised and time limited with no reference to adult matters or the court process having regard to the risk that "the father will seek to embroil [M] in adult matters and will seek to blur the boundaries of contact with a detrimental effect upon the mother and therefore, indirectly, on [M]". She advised that father would not comply with boundaries of that kind and would "not work with the arrangements in any way, shape or form, whether supervised or not" with the consequence that only indirect contact should be afforded. Father's oral evidence to Judge Jones demonstrated patently that which Dr Croxon had predicted. He said that he was angry and outraged at the suggestion there should be any supervision of his contact for which he saw no reason. He found it demeaning. He said he would never give up his struggle to see [M] and that he...
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