Re H-B (Contact)
| Jurisdiction | England & Wales |
| Judge | Black LJ,Vos LJ,PRESIDENT OF THE FAMILY DIVISION |
| Judgment Date | 22 April 2015 |
| Neutral Citation | [2015] EWCA Civ 389 |
| Docket Number | Case No: B4/2014/2622 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 2015 |
[2015] EWCA Civ 389
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
HIS HONOUR JUDGE WILDBLOOD QC
PL12P01463
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Lord Justice Vos
Case No: B4/2014/2622
Ms Sarah Evans ( Pro Bono) for the Appellant
Ms Ceri White ( Direct Access) for the 1 st Respondent
Ms Kathryn Skellorn QC & Ms Jessica Wood (instructed by Pardoes Solicitors LLP) for the 2 nd Respondent
Ms Abigail Bond (instructed by Wollen Michelmore) for the 3 rd Respondent
Hearing date: 31 st March 2015
This is an appeal from orders made by HHJ Wildblood on 9 July 2014 in relation to two girls, J (who has this month turned 16) and K (who is 14). Judge Wildblood refused the application for direct contact made by the girls' father ("the father"). He made provision for the father to send cards or letters to the girls once every two months and ordered that he should be kept informed about all major matters relating to their welfare. He was to be provided with school reports and permitted to visit the children's school at times when they were not present. The judge also made an order under section 91(14) of the Children Act 1989 ("the Children Act") prohibiting any further applications by the father for child arrangements orders under section 8 of the Children Act until, in J's case, her 18 th birthday and, in K's case, 31 July 2017.
It is the father who appeals to this court. His appeal is opposed by the mother and both girls. At the time of the July 2014 hearing before Judge Wildblood, the father was in person, but he now has the benefit of counsel who acts pro bono, as is so often the case these days, and to whom we are grateful for this generous provision of her services and her effective submissions. All other parties have had the benefit of counsel in the normal way throughout. For some time now, J has been instructing her own solicitor. K also does so for the purposes of this appeal but when the case was before Judge Wildblood in July 2014, she was still represented through her children's guardian. Counsel for the girls have had a delicate task and it was clear that they have gone about it with the greatest care. They conveyed the girls' views very clearly to the court.
Section 8 orders in relation to children who have attained 16 years of age
Before describing the circumstances of this case, I should make one preliminary point. Now that J is 16, she is in a different position with regard to section 8 orders. Although a child arrangements order can be made with regard to a child up to the age of 18, section 9(6) of the Children Act provides that no court is to make a section 8 order which is to have effect for a period which will end after the child has reached the age of 16 unless it is satisfied that the circumstances of the case are exceptional. A section 8 order made in respect of a child who is younger than 16, ceases to have effect when the child reaches 16 "unless it is to have effect beyond that age by virtue of section 9(6)", see section 91(10) of the Children Act. It follows that any order that Judge Wildblood made would have had a very limited period to run unless the circumstances of the case were considered to be exceptional.
The relevant law and the ambit of the appeal
It is not suggested that the judge misstated or ignored the law. The father's complaint is that he failed to take the steps that should have been taken in accordance with it and in the light of the factors that were relevant to his determination. Accordingly, the appeal turns on the particular facts of this case and I do not therefore propose to rehearse the legal background. In Re W (Direct Contact) [2012] EWCA Civ 999 at §35 et seq, this court summarised the relevant case law and highlighted the governing principles. Nothing that I say here is intended to alter the existing law.
The father was acting in person at the time he began his appeal and he lodged far reaching grounds of appeal. Granting permission for the appeal, Ryder LJ took a narrower view of the case. That no doubt contributed to the provision by counsel of revised grounds of appeal which are much more focussed. They proceed upon the basis that the girls have not been informed of certain findings of fact made by the court in 2010 and have been allowed to persist in the false belief that the father has behaved in a sexually inappropriate manner towards them. The central criticism made of the judge in the grounds is that he failed to order that an expert be instructed to advise and assist him as to how to inform the children of the findings and to ensure that they were informed in the hope that this would enable progress to be made with contact. In counsel's skeleton argument for this court, and in oral argument, it was also submitted that there were other ways to achieve progress which the judge should have pursued. There was also criticism of the court's handling of the case prior to the July 2014 hearing, concentrating particularly on the period up to Judge Wildblood taking over the case in 2010.
The factual situation
The parents met in 1993 and were together for 10 years. Following their separation, the children lived with the mother and had contact with the father. From 2005 until June 2008, they used to stay with the father on alternate weekends and he was involved in doing some of the school runs. In June 2008, however, there was an incident which proved to be of considerable significance.
The father had remarried in February 2008. Whilst the children were staying with him and his new wife (W) on the weekend of 7/8 June 2008, there was trouble between J and W. Because of its importance, I will set out what happened in the terms agreed by the parties as an accurate description of the event:
"On 8 June 2008, while J and K were visiting for a contact visit, an incident occurred in which W was angry with J and behaved inappropriately towards her, grabbing her and pushing her down on the sofa, in a manner which was likely to be, and indeed was, frightening for J – then aged 9. This caused superficial injury to J — bruising to the right arm and chest wall ….the father failed to intervene effectively to prevent the incident. When giving his statement to the police on 16 June 2008, the father did not give a full and frank account of the incident and minimised the seriousness of it."
The incident prompted an application by the mother, on 19 June 2008, for a residence order in her favour and for the suspension of contact. The father responded by seeking contact.
Before the end of the year, there was an initial assessment by children's services and a report was provided by a CAFCASS officer. There were by now a number of allegations about the father's conduct in relation to the girls, particularly in relation to him bombarding them with telephone calls at times and about his behaviour when he encountered them at a school bonfire event. The plan was for there to be a fact finding hearing in February 2009 but it was to be limited to ascertaining what happened on 8 June 2008 (see the order of HHJ Tyzack QC of 10 December 2008). As the CAFCASS officer reported that the girls were saying that they did not want to see the father, he did not pursue contact in the interim. Judge Tyzack joined the girls as parties to the proceedings.
At the hearing in February 2009, which took place in front of HHJ Neligan, the description of the June incident which I have set out above was agreed and directions were given for the further conduct of the litigation. Provision was made for the joint instruction of Dr Gay, a consultant child and adolescent psychiatrist.
Dr Gay reported at the end of April 2009. He had found the girls to have quite exaggerated negative responses about the father and his family. He recommended counselling for J to help her deal with the aftermath of the events of the summer of 2008. He advised that both children needed contact with the father but that direct contact should take a backseat for a while.
CAFCASS reported on 1 July 2009 that the girls' views about contact had, if anything, hardened. The father had maintained indirect contact with them over the past year but they would not look at his letters. The CAFCASS officer found it hard to see how there could be any movement with contact until the children had therapy and began to unravel some of the hurt, confusion and conflict they were feeling. The officer advised that the father should continue with indirect contact pending any recommendation from the children's therapist.
When the case came before Judge Tyzack on 3 July 2009, the parties all agreed that J, and later also K, should have therapy with an identified therapist as a matter of urgency. The judge suggested that the father should write a letter to the girls apologising for the events of 8 June 2008 and he did. However, the letter was not forwarded to the girls because the father had put that he was sorry "that you feel I let you down" and would not accept advice to amend this to an apology "that I let you down". Judge Wildblood said of this in his 2010 judgment (§111) that it was "unwise, intransigent and insensitive" of the father to dig his heels in about the precise wording. The mother attracted criticism from Judge Wildblood for her conduct at around this time as well. She refused to accept assistance from CAFCASS or the family support worker and the judge said that "it was even more unwise, intransigent and insensitive for [the mother] to dig her heels in by refusing to...
To continue reading
Request your trial
-
Re C (Children)
...duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." 24 In Re H-B (Contact) [2015] EWCA Civ 389, the President of the Family Division, Sir James Munby P, quoted with approval the judgment of McFarlane LJ in Re W (Dir......
-
Makhlouf v Secretary of State for the Home Department
...In re A (A Child) (intractable contact dispute) [2013] 3 FCR 257 and In re H-B (Children) (Contact: Prohibition on Further Applications) [2015] 2 FCR 581. 36 All of this contributed to the requirement to focus closely on the needs of the children, Ms Higgins said. These should not be assimi......
-
A, B, C, D, E and F (Children)
...so, entirely correct to see contact as a matter extending beyond parental responsibility in the technical legal sense. I said as much in Re H-B (Contact) [2015] EWCA Civ 389, [2015] 2 FCR 581, para 72, a passage to which I was indeed referred both by Mr Stonor and by Ms Cavanagh: "However,......
-
D (A Child)
...There is no dispute about the importance of the principle of parental responsibility in the common law. As Sir James Munby P said in In re H-B (Contact) [2015] EWCA Civ 389; [2015] 2 FCR 581, para 72: “… parental responsibility is more, much more than a mere lawyer's concept or a principl......