Re G (A Child: Intractable Contact)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Clifford Bellamy |
| Judgment Date | 25 September 2013 |
| Neutral Citation | [2013] EWHC 2948 (Fam) |
| Court | Family Division |
| Docket Number | CASE No LE12PO0267 |
| Date | 25 September 2013 |
[2013] EWHC 2948 (Fam)
IN THE HIGH COURT OF JUSTICE
Family Division
LEICESTER DISTRICT REGISTRY
His Honour Judge Clifford Bellamy Sitting as a Judge of the High Court
CASE No LE12PO0267
Miss Ann Williams for the father
Mrs Kathleen Hayter for the mother
Mr Simon Warlock for NYAS
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.
G is 13 years old. Her parents are JD ('the mother') and TN ('the father'). The father applies to vary an order made by His Honour Judge Brunning on 14 March 2006. The order is long and detailed. I consider the detail of the order later in this judgment. The key provision which the father seeks to change is that which fixes the frequency of direct contact at 3 times a year.
Background
The mother is aged 47. She is a teacher. The father is aged 56. He is a retired police officer.
The parents met in 1996. They were married in 1997. They separated 3 weeks before G was born. They were subsequently divorced. G has never known a time when she and her parents have lived together as a family.
For the first six years of G's life litigation between her parents was constant. The father issued his first application on 3 July 2000. G was then just 10 weeks old. The proceedings continued unabated until March 2006. The contact issue became so intractable that G was made a party to the proceedings and an officer of Cafcass was appointed as guardian ad litem for her under what was then rule 9.5 of the Family Proceedings Rules 1991. In 2004 the proceedings were transferred to the High Court. By the time of the final order on 14 March 2006 there had been more than 40 court hearings.
The hearing bundle prepared for the present hearing contains only a fraction of the papers generated by the earlier proceedings. Those papers give, at best, a snapshot of the litigation between these parents. Despite that caveat, it is clear from the papers relied upon for this hearing that in the early days of the litigation the father was having contact much more frequently than he does today including, for a while, overnight contact. The progression of contact during the period from 2000 to 2006 was one of gradual increase during the early years followed by a gradual reduction to the very low level ordered in 2006. Given that there were consistent reports of good quality contact between G and her father and of a warm and loving relationship between them, it is necessary to explore the reasons why this reduction came about.
Guardian's evidence
Brenda Phillips was appointed guardian ad litem on 17 January 2003. Mrs Phillips was a very experienced and well-respected Cafcass officer. Since the order of 14 March 2006 Mrs Phillips has retired.
The context in which Mrs Phillips was appointed was that of long-running, complex proceedings recently made more complex by fact that the month before her appointment G was diagnosed as suffering from cancer. She was having regular in-patient stays in hospital. At that time the father was having regular contact with G both when she was receiving in-patient treatment (chemotherapy) and when she was at home.
Mrs Phillip's first report is dated 10 May 2003. In it, she acknowledges the importance of contact:
37. My involvement with the family has confirmed that G is a much loved little girl by everyone and it is not surprising that her parents, grandparents, aunts and uncles want to spend quality time with her. From G's point of view contact with her immediate and extended family is extremely important, not least because it gives her a sense of her family history and identity…
43. Looking at what is in the best interests of G in terms of her long-term physical and emotional security and stability, I feel that she needs to have regular contact with her father. However I am very concerned about father's attitude and behaviour, his reluctance to accept the mother as the primary carer, his lack of insight into G's medical needs which have to take priority, his continuing undermining of the mother's role with not least the nursing profession, all leave me with concerns about the effect of this on mother's ability to remain emotionally strong and the effect this will have on G.
44. The father loves his daughter and wants to be with her. He wants to play a significant role in her life and is angry and frustrated that he is not being given the opportunity to do so. The father is exhibiting classic signs of bereavement, loss of family life, loss of opportunity to be part of G's family life, despair at not being able to change how things are, angry and frustrated with the Judicial System in what he perceives as the inequality of opportunities to build on his relationship with G.
45. Despite several discussions with the father regarding my concerns, he appears unable to see anyone else's point of view. Because of the continuity of the Judiciary the Court will be well aware of the difficulties. I am left with real concerns around the ongoing issue of contact and feel that in order to protect G's best interests this cannot be allowed to go on throughout her childhood.'
Mrs Phillip's second report was dated 14 August 2003. It is not in the bundle and I have not seen it. By the time of her third report, dated 3 March 2004 contact was taking place every Saturday. Handover took place at the mother's home. The guardian said that contact 'has gone reasonably well albeit initially G was reluctant to go'. Notwithstanding that relatively positive picture, the guardian once again expressed some concerns. She said,
'I firmly believe that the Applicant uses emotionally bullying tactics in order to get his own way. His behaviour, his lack of insight into the effect he has on others and the potential impact this has on any future contact arrangements with his daughter leaves me with concern. In the absence of the Applicant's agreement to a psychological assessment, it is difficult to see how the case can be progressed.
There is no doubt in my mind that G is being adversely affected by these proceedings. She loves her daddy and appears to enjoy her contact with him. However, for whatever reason, she is not feeling confident to spend long periods of time away from her mother. G has told her mother, her maternal grandparents and aunt and uncle as well as the Children's Guardian that she does not want to stay at her daddy's house…
Therefore, at present, I could not recommend any extension of contact. Indeed, I question whether G is coping with the present level of contact and whether a shorter contact day would be more appropriate. The benefit to G of a shorter contact day would be that she could see her daddy but without her apparent perceived anxiety of being separated from her mummy.'
Mrs Phillip's fourth report was dated 5 June 2004. She remained concerned. She suggested that 'having heard from the respective parties the Court may wish to consider a suspension of contact until the outcome of the Psychological Assessment is known'. By the time of her next report in March 2005 the mother had applied for contact to be suspended. Mrs Phillips says,
59. I have been involved in these proceedings since the beginning of 2003. Throughout that time, there have been difficulties, which have resulted in lack of trust between some of the parties and has resulted in some delays in concluding the matter.
60. The mother's application to suspend contact has not been brought lightly — it has come about as a result of long-standing issues around contact since the birth of G. The mother feels at the end of her tether and questions the effect this will have on G. She is genuinely concerned that the father's lack of insight and acceptance of the part he plays in these proceedings will impact on G's emotional wellbeing.
61. The father continues to apportion blame on anyone rather than taking responsibility for his own actions. He is perceived by many of the professionals involved in G's life as intimidating, challenging and bombastic in his attitude. Indeed, he has been told this by His Honour Judge Hall. Despite this, the father continues to use emotionally bullying tactics in order to get his own way.
62. I know from my own personal experience of being involved in this case, the effect the father's behaviour can have. I had to take the most unusual step of only seeing the father in the presence of a Solicitor, for fear of his unfounded allegations and his misunderstanding of what I had said. Similarly, some members of the medical team had the same experience. I have been fortunate in that I had the support of a CAFCASS panel manager who had had first hand experience of the father's behaviour and so was able to understand the difficulties I faced. Additionally, I have been supported and, indeed, on occasions protected from many of the accusations levelled against me by G's Solicitor and Barrister. Bluntly, there have been occasions when I have questioned whether I can continue in this case and, indeed, if the father had has (sic) way, he would undoubtedly wish me to be removed. Indeed, RT, McKenzie friend who previously supported the father has in the past threatened to do just that. Without doubt, this has been the most difficult case in which I have been involved, not as a result of the complexities of the case but wholly due to the personalities involved.
63. In my Report dated 3 March 2004, I wrote that in my view, G was being adversely affected by these...
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