Re J-M (A Child) (Contact Proceedings: Balance of Harm)

Hearing dates: 25 th March 2014

This appeal concerns the question of a father's contact with his son, MX, who is 14 years old, having been born in November 1999. MX lives with his mother (M). The last time he saw his father (F) was in October 2010.

The matter has a long history. Proceedings began when MX was just a baby and there have been a number of orders since then. Prior to 2009, there was a period of about four years when there was no contact between F and MX. In F's view, this was attributable to the malign intervention of M and her family who set out to alienate MX from him and to a conspiracy or conspiracies involving M's lawyers, his own lawyers, and a district judge.

In 2005, MX was joined as a party with a children's guardian to look after his interests. A psychologist was instructed to report on the issues. A consent order made in March 2009 provided for regular contact between MX and F. F would collect MX from the home in Wales where he lives with M and they would go together to F's home in England. A further order was made in September 2010. It provided for a significant amount of staying contact. However, the contact planned for 27 December 2010 did not take place because there were weather-related transport difficulties and no contact took place thereafter.

F applied in February 2011 to enforce the September 2010 order. That application came before District Judge Regan in November 2012. On 7 December 2012, the district judge refused F's application for direct contact, setting aside the existing contact order. He ordered that there be indirect contact by F sending MX a card and a present at Easter, Christmas and on MX's birthday, and M ensuring that F was sent a recent photograph of MX twice a year.

F sought permission to appeal to the county court. On 8 April 2013, HHJ John granted permission "limited to the issue of whether the harm of cessation of direct contact in any form outweighs the harm arising out of attempting to initiate some contact against the child's wishes" (appeal bundle, page 147). He heard and dismissed the appeal on 7 June 2013.

Judge John's formulation of the issue for which he gave permission to appeal drew in five of the six grounds that F himself had originally presented with his Appellant's Notice to the county court and subsequently also presented to this court. The sixth ground, which Judge John did not grant F permission to pursue, criticised the district judge for refusing an application for further expert evidence from a psychologist. When permission to appeal to this court was granted, it was, however, unlimited in its scope. Perhaps indulgently, we did not seek to reopen the question of permission on this "expert evidence" ground as we could have done under CPR Rule 52.9. We heard argument therefore on all the grounds that F wished to advance.

In summary, the grounds of appeal were that the district judge:

i) wrongly failed to accede to the request for a further psychological report on the question of MX's wishes in relation to contact;

ii) failed to analyse whether MX's reported wishes were his genuine wishes;

iii) failed to analyse whether the temporary harm that would be caused in pursuing contact outweighed the harm that would be caused by the permanent separation of MX from his father;

iv) gave too much weight to MX's wishes and feelings and failed to take account of his inability to understand M's influence upon him;

v) was wrong to conclude that all reasonable steps had been taken to facilitate contact when there had been no attempt to test MX's reluctance to see F since contact broke down;

vi) wrongly allowed the implacable hostility of M to frustrate the contact order without sufficient reason to do so.

A further issue, identified by the Lord Justice giving permission for the appeal to this court, was whether, in the light of the decision of the Supreme Court in Re B (A Child) [2013] UKSC 33, Judge John adopted an incorrect approach to the appeal before him by asking whether the decision of the district judge was "plainly wrong".

F, who appeared in person before Judge John and before us, provided us with a comprehensive skeleton argument setting out the matters which he wished to advance in support of the grounds of appeal. He also addressed us orally, covering a large number of issues ranging over the whole history of the contact difficulties. From this, it was apparent that he feels aggrieved about much that has occurred. It is therefore important to note, at the outset of this judgment, that our function as an appeal court is not to retry the case as if we were first instance judges but to scrutinise the way in which the case was approached in the courts below to identify whether the criticisms made of the district judge's decision and of the circuit judge's approach are made out and if so, what should be done about it.

The appeal was opposed by M who was represented by counsel. As a result of F failing to name MX as a party in his appellant's notice, MX's guardian was not served with notice of the appeal proceedings and was unaware until shortly before the hearing that they were on foot. She took the view that as her position was the same as M's, no public funding would be available for her to attend the hearing, and she was content that the appeal should proceed without MX being represented.

The hearing before the district judge

M's case before the district judge was that MX did not want to see F or even have indirect contact with him. She said this was the child's own decision and she had not influenced him. F's case was that it was M's fault that contact was not taking place and that she had coloured MX's views and alienated him from him.

F was represented before the district judge. At the outset of the hearing, his counsel applied for permission to instruct a psychologist to explore why MX was saying that he would not see F. The district judge refused the application for three reasons. First, it would cause delay because there would have to be an adjournment for the work to be done. Secondly, as the district judge put it, "there has been ample opportunity in the months leading to this hearing with the very detailed directions given for F to raise the matter" (§7). Thirdly, "on the papers at least, the wishes and views of the child are clearly represented by [the guardian] who has legal representation and has carefully sought to ascertain the child's views" (ibid). The district judge made clear, however, that he would consider in the light of the evidence whether there was a need for expert intervention and also that he was well aware of the gravity of the decision he was being asked to take and would carefully consider whether he could rely upon what was reported to him about MX's wishes and view.

The district judge went on to hear both parents and the guardian. He did not see the matter in such stark terms as either of the parents and attributed blame for the situation to both.

The following findings and observations are to be found in his judgment:

i) The guardian saw "a very appropriate contact session when the first gentle steps of contact took place" and F did all the right things with MX during his contact after March 2009 so one may have expected that MX would be keen on contact at least to some degree (§11) and that contact would have flourished even against the most difficult background (§12).

ii) M's feelings towards F came over in evidence as "venomous" (§9). She was hostile to him and could not be relied on to promote contact and "more than likely will give signals either deliberately or even unintentionally which have already greatly affected MX" (ibid).

iii) MX is largely reflecting M's feelings and disproportionate anxieties related to contact (§10); her antagonism has affected and influenced him (§12) and it is likely MX has been poisoned against him (§29).

iv) The wider maternal family are also not supportive of contact and have no good word to say about F (§12).

v) But M having poisoned MX against F is not the only reason why MX does not want a relationship with him (§29).

vi) M's mental health is fragile (§35). MX has "a close loving and protective relationship" with her. He had to live away from her with other family members when she was unwell in 2010/11 and that was confusing and difficult for him. He "was bound to be able to see the impact of the parental relationship on M and her health" (§17).

vii) It is understandable that a young teenager such as MX would prefer a quiet life free from the parental hassle that contact causes. He also loves his mother and seeks to protect her as a vulnerable person. He is brought into matters and shares M's burden (§12).

viii) Whether the reasons given by MX for not wanting contact are really his genuine reasons is open to question. MX cites F's racist views, missing M, finding unpalatable photos in F's drawer and F stopping at the betting shop to place a bet during contact, but those matters alone were not sufficient to lead MX to reject contact (§§14 and 15) and were not good reason to stop contact (§16). They have been used by M to turn MX against F (§14).

ix) Whatever the reasons, there are no signs of MX...