RE F (Contact: Enforcement: Representation of Child)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,MRS JUSTICE HALE |
| Judgment Date | 17 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1217-16 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | LTA 97/6658/J |
| Date | 17 December 1997 |
[1997] EWCA Civ J1217-16
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GATESHEAD COUNTY COURT
(HIS HONOUR JUDGE MacDONALD)
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Simon Brown
Mrs Justice Hale
LTA 97/6658/J
MR PHILIP WALLING (instructed by Messrs John Foley & Co, Gateshead NE8 1LU) appeared on behalf of the Appellant.
MISS WOOLRICH (instructed by Messrs Tait Farrier Graham, Gateshead NE8 1LU) appeared on behalf of the Respondent.
Mrs Justice Hale will give the first judgment.
This is a father's application for leave to appeal against the order of His Honour Judge MacDonald in the Gateshead County Court on 8th July 1997. He made an order for reasonable contact between the father and his son, D. This replaced an earlier order for defined contact. The judge refused to attach a penal notice to that earlier order. He reserved the case to himself specifically so that the father could not apply to another judge for such a notice. He also revoked an earlier order for an assessment of the father and child. According to the draft notice of appeal the father now wishes in effect to restore the earlier contact order, to have a penal notice attached to it and to invite the Official Solicitor to represent the child; or, according to counsel's skeleton argument, for the case to be transferred to the High Court and an order for the resumption of the assessment by Dr Bone.
This is a long and unhappy saga. D was born nine weeks early on 10th August 1991, so he is now over six. He weighed only 1,245 grams at birth. He was unwell then and required resuscitation. He then developed severe respiratory distress and was ventilated for five days. He was not discharged home until he was two months old. It later turned out that he suffers from cerebral palsy in the form of a right hemiparesis. He also has developmental delay and speech delay and has suffered behavioural problems.
His parents were not married to one another. It appears that they did not even live together. Their relationship ended in 1994 when D was approaching three years old. At first the father saw D frequently, but then the mother alleged the father had damaged her car, and so she would not allow him to call at her home. There was therefore no contact from July 1994. The father applied to the Family Proceedings Court for contact in September 1994. Relations between them appear to have gone from bad to worse since then.
The root of the problem is that the mother maintains that D's disabilities were caused by the father's violence towards her when she was pregnant. That view is reinforced by her own mother's views. No doubt the hard and devoted work required of them both in looking after a severely disabled child has contributed to their feelings in this matter. It also contributes to their reservations about whether the father is competent to look at D without supervision. The father admits violence towards the mother, but he believes that the premature labour was brought on by her falling over when sitting on a chair in the back of a van and that the disabilities result from the prematurity and probably a later attack of meningitis. As far as I am aware there is no medical evidence or findings to resolve this debate and it may be that it is incapable of resolution.
There have been five court welfare officers' reports in all. The first was on 12th April 1995. This reported upon a successful meeting between the father and child at the court welfare offices in February 1995. Two further meetings arranged at a contact centre fell through for what appear to be acceptable reasons. The maternal grandmother offered to allow contact at her home for one hour a week. Initially the father rejected this. The court welfare officer thought it an appropriate interim arrangement. Accordingly the Family Proceedings Court made an interim order on 20th April 1995 providing for one hour each Wednesday at the grandmother's home to be supervised by her.
The second court welfare officer's report on 4th July 1995 reported that contact had taken place as ordered but that the animosity between the parties "goes from strength to strength". The arrangements were not ideal because of this, but it was difficult to see how they could be moved on. At the further hearing in the Family Proceedings Court on 24th August 1995 the magistrates transferred the case to the County Court and ordered a further court welfare officer's report on whether there should be contact in principle.
Accordingly the third report is dated 11th December 1995. There had been no contact since August, but the following opinion was expressed:
"The principle of D having contact with his father should in my view be upheld. However the practical issue of how this takes place seems to be impossible to resolve."
The father would accept a return to the previous arrangements provided that the maternal grandmother was not in the room. That seemed to be unworkable and so the court welfare officer was unable to assist further.
On 19th January 1996 His Honour Judge MacDonald ordered by consent that there be interim contact at the maternal grandmother's home for one hour each week to be supervised by her on the first three occasions and thereafter unsupervised.
The fourth court welfare officer's report is dated 2nd April 1996. Contact had taken place in accordance with that order. The officer had observed one visit. It seems to have gone well. The father thought that his relationship with the grandmother had improved. The mother, however, was still opposed to moving matters further forward.
On 13th June 1996 there was a full day's hearing before Mr Recorder Hallam. Although in referring this matter to the full court Thorpe LJ directed that "any record of previous judgments" be included in the bundle, there is no note of his judgment in our bundle. It is therefore impossible for us to know what findings of fact, if any, were made and what the reasons were for the learned recorder's decision. We are told that the mother raised objections relating to D's health, including the possibility that he suffered from asthma and continued the objections that she had long held about the father's ability to cope with D's disabilities. The learned recorder ordered that there be unsupervised contact for one and a half hours two days a week. The first two were to be observed by the court welfare officer. He also ordered that the there be a review by a circuit judge in three months' time. So he clearly did not contemplate that that would be the end of the matter.
The fifth court welfare officer's report is dated 12th September 1996. There had been difficulties over D's health immediately after the hearing. A report, to which I will return, from Dr Higgs confirms that D was admitted to hospital with whooping cough on 19th June 1996. There was some suggestion that he had asthma but "no convincing evidence of this at present". The court welfare officer reported that they had agreed a breathing space to enable D to recover, but when the welfare officer contacted the mother to make the arrangements for the visits the mother indicated that she might not feel able to comply with the court order. There had been no progress since then. Nevertheless, contact had gone on as before, although in September the father decided to suspend his visits until the next court hearing, "to avoid any further unpleasantness".
The review hearing took place on 19th September. His Honour Judge MacDonald ordered a medical report from a consultant on the question of asthma. This resulted in Dr Higgs' report of 16th October. He also ordered the mother to show good reason at the next hearing why she should not be treated as in contempt of court for her failure to attend court on that day.
Dr Higgs' report on 16th October gives a useful account of D's disabilities. It also made some further observations:
"He needs to be supervised at all times and has no sense of danger."
"It is crucial that his routine is consistent and predictable. The adults caring for him need to have insight into his disabilities and the ability to communicate with him effectively. Although he is a delightful boy who responds well to a very structured environment and patience, at times his behaviour can still be troublesome. He throws temper tantrums, bites and hits people. Although his temper tantrums are less frequent, they can escalate out of control without proper handling. A mature and calm approach is needed."
She went on to express favourable views of the care that he was receiving from the mother and grandmother. She suggested that if there was to be a move to unsupervised access, as she called it, it would be
"… important that some form of formal assessment should be undertaken to ensure that he [that is the father] is able to meet D's special needs and that his care of D is consistent with the routines that have been established for him so that the improvements that have been achieved with him, particularly over the last year, are maintained."
On 2nd December 1996 His Honour Judge MacDonald, again by consent, ordered that Dr David Bone, a child psychiatrist undertake
"… an assessment of the Applicant and his abilities to deal with the child D's … special needs …"
The assessment was to include contact between the father and D supervised or observed by Dr Bone. In the meantime contact was to continue as before. In addition to this the father had complained about the grandmother's hostile remarks to him and we are informed that oral cross-undertakings...
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Re A (Children)
...authorities which in his skeleton argument he relies upon, namely, In Re N (Access: Penal Notice) [1992] 1 FLR 134 and Re F (Contact: enforcement: representation of child) [1998] 1 FLR 691. 9 There is no doubt at all that the judge's findings against the mother in this sphere appear harsh, ......