Re A (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Briggs,Lord Justice Aikens |
| Judgment Date | 06 September 2013 |
| Neutral Citation | [2013] EWCA Civ 1104 |
| Docket Number | Case No: B4/2013/0074 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 September 2013 |
Lord Justice Aikens
Lord Justice Mcfarlane
and
Lord Justice Briggs
Case No: B4/2013/0074
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD DISTRICT REGISTRY
HHJ Goldsack QC
SE9P00088
Royal Courts of Justice
Strand, London, WC2A 2LL
The applicant, Mr D, appeared in person
Miss Pennie Stanistreet (instructed by Taylor and Emmet Solicitors LLP) for the First Respondent
Ms Jessica Pemberton (instructed by NYAS) for the Second Respondent
Hearing date: 7 June 2013
Approved Judgment
On 9 th October 2012, in the opening words of the judgment that is the subject of this appeal, His Honour Judge Alan Goldsack QC made the following observation:
"It was in 1988, as a Recorder, that I first started hearing private family law cases. I have continued to hear them over the intervening twenty four years, including four years as Designated Family Judge at the end of the last century. I do not recall any case (even Public Law cases involving several children) which has taken so long or has left me with such a feeling of failure on the part of the Family Justice System. Neither the parents nor the child have been well served…. All I can say, with the benefit of hindsight, is that some of the turns which this case has taken, or not taken, appear surprising and I have no difficulty in understanding why father has expressed criticism both of professionals appointed to assist the court and judges for not enforcing orders."
The case concerns a girl, M, born on 26 th October 1999 and therefore now fast approaching her fourteenth birthday. M's mother ["the mother"] is now aged 48 years and her father ["the father"] is aged 60. M's parents separated in May 2001 when M was only some 21 months old and the first application for contact was made by the father five months later in October 2001. The litigation concerning M between the parents has continued, almost without interruption, for the ensuing twelve years. Since 2006 alone there have been no fewer than eighty-two court orders. At least seven judges have been involved in the case at one stage or another and over ten CAFCASS officers have played a part, initially as report writers and, latterly, as M's children's guardian. More recently M has been represented by NYAS. Several local authority social workers have also been involved at various stages of the case. HHJ Goldsack considered that these basic statistics provided the "best evidence that there has been systemic failure in this case".
These extensive proceedings have been conducted in the Sheffield County Court and concluded, so far as that court is concerned, with the order made by HHJ Goldsack at the conclusion of his judgment on 9 th October 2012. The order made that day provides that M shall reside with her mother and "there shall be no order for direct contact between M and the applicant father; the father shall be at liberty to send e.mails, cards and presents at Christmas and M's birthday and shall be at liberty to obtain reports and information from M's school". An embargo in relation to any further applications relating to M was put in place with respect to both parents under Children Act l989, s 91(14), until October 2015, by which time M will be sixteen years old.
The father, who acts in person before this court, seeks to appeal that final order, but in doing so inevitably makes substantial complaint about the manner in which the entire proceedings have been conducted. Were he represented the father's advocate would be likely to deploy labels which are familiar to those who practice in the family courts on the basis that this is "an unimpeachable father" who has been consistently prevented from enjoying contact with his daughter by "an implacably hostile mother" in circumstances where all agree that M enjoys her time with her father on those occasions when contact has actually been achieved.
In order to underline the scale of the failure of the Family Justice system in this case I should record in these introductory remarks that if an advocate had sought to characterise this case in the manner suggested above, that characterisation would be, to my mind, uncontroversial. This is "an unimpeachable father" against whom no adverse findings of fact have been made at any stage in this process and whose demeanour before this court, as it was apparently before HHJ Goldsack, was dignified and measured despite the enormous frustration and anger that he must feel. So far as the mother is concerned HHJ Goldsack held that he had "no doubt that ….mother has always been implacably opposed to contact" to the father and to the extended paternal family. In relation to M the judge was equally plain: "the evidence is clear that whenever M has contact with father it is positive and that M does love her father."
Despite the core findings that I have recorded, HHJ Goldsack felt driven to make the order for no direct contact between father and daughter on the basis that, in recent times, M had consistently stated her firm opposition to the continuation of the court process and any further attempts to establish direct contact to her father. The judge concluded that, at the age of 13 years, M's wishes could not and should not be overridden. The father's case is that the judge should not have accepted M's recent utterances as being a true indication of her wishes and feelings, given her apparent willingness to contemplate further contact only some six months prior to the final judgment and he asserts that the court should not abdicate its responsibility to make orders that afford paramount consideration to M's welfare when the child would plainly benefit from having a full and ordinary relationship with her father. As a second limb of his appeal the father submits that, where the court itself admits that there has been a systemic failure in the provision of family justice to this case, the outcome should be a full re-hearing, properly undertaken before a new judge, rather than the making of an order for "no direct contact".
Before this court the mother seeks to uphold the decision under appeal on the basis that the judge was right in holding that the time had come to listen to the voice of the child and to bring these proceedings to an end. On behalf of M it is submitted that this was a careful judgment, given by an experienced judge and it is not open to this court to hold that it is 'wrong'.
The forensic history
Given the basic statistics that I have described it would be as unnecessarily burdensome as it would be totally unedifying for me to set out here a blow by blow procedural history of this case. If my Lords agree, I propose that a small bundle of the relevant papers in this case are sent to the President of the Family Division and to Mr David Norgrove, as Chairman of the Family Justice Board, in the hope that lessons may be learned for the Family Justice System as a whole as a result of what has transpired in this case over the last twelve years in Sheffield County Court.
Despite the criticisms that may be made of its outcome, I regard HHJ Goldsack's judgment in this case as an impressive and clear distillation of the vast amount of material to which he was exposed and of the issues in the case. In setting the procedural scene I can do no better than to rely upon his description:
"3. Father is now 60; mother now 48. They were in a relationship for about ten years before M was born. Although never married they lived together before the birth and for a few months after the birth. An important background fact has been mother's health problems, both mental and physical, which are of long standing. She had at least one mental breakdown before the birth of M. She has been variously diagnosed as having an emotionally unstable personality disorder, displaying paranoid personality traits and periodically suffers from depression. These have not been helped by occasions when she has abused alcohol and/or illicit drugs. She also suffers from Crohn's disease and was unable to attend the final hearing because she had only recently been discharged from hospital after admission for complications from that condition.
4. It is father's case that, since very shortly after M was born, mother (aided and abetted by her parents — with whom she has had an on-off relationship over the years and who, father believes, have never liked him) has tried to prevent him from having a worthwhile relationship with M. Mother has always asserted that she wants M to have a "normal" relationship with her father. That there have hardly ever been periods when that occurred she has increasingly put down to M not wanting to go for contact (particularly staying) and, more latterly, refusing to go for contact.
5. Father has only had any contact with M as a result of bringing applications before the court and referring the matter back to court when mother either refuses to "move contact on" or does not produce M for contact. Early Cafcass reports are revealing. As early as April 2002 mother was resistant to contact moving on to overnight stays although there has never been any doubt about father's ability to cope with the care of M: Cafcass recommended it. Almost immediately mother tried to undermine it by saying M was not happy with the food father was providing and M did not want to go. She stopped M going. Cafcass recommended suspending staying contact. It was re-instated later and in March 2003 the Cafcass writer observed: "the court may feel enough resources have been devolved to this case and it is incumbent on mother and father to make any order work".
6. Later that...
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