Re M (Contact: Family Assistance: McKenzie Friend)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE ROCH |
| Judgment Date | 25 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0625-11 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 1998 |
| Docket Number | CCFMI 98/0356/2 |
[1998] EWCA Civ J0625-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH COUNTY COURT
(His Honour Judge Cox)
Royal Courts of Justice
Strand
London WC2
Lord Justice Roch
Lord Justice Ward
CCFMI 98/0356/2
THE APPELLANT/APPLICANT appeared in Person.
MR. D. CADIN (instructed by Messrs Wolferstans, Plymouth) appeared on behalf of the Respondent/Respondent.
This is another of the all too frequent problems that arise from genuinely held fears entertained by a mother relating to the father of her children, which begin to interfere with the children's contact to their father. It is a sadly familiar story.
In this case the children concerned are R, who was born on 24th February 1992, so he is a boy of 6, and then his twin brothers, K and C, born on 3rd December 1993, who are four and a half years old. The parents never married. Their relationship began when the mother was only 15, and, not surprisingly I suppose, that was not well received by her parents who, the father feels, continue to be highly influential in many of the decisions which affect their grandchildren.
The couple lived together, though their cohabitation was punctuated by various separations but there is no doubt at all that they were, for some time at least, operating as a family. It does not appear to have been an auspiciously happy family. On any showing there were many rows, there being an issue as to whether or not, as the mother contended, the father had treated her with violence. It is unnecessary to speculate further on that aspect. It is sufficient to note that the judge was quite satisfied that the mother's fears were genuinely held.
The father had applied for contact to the boys and for a parental responsibility order. The proceedings had been inevitably long drawn out, and there had been endless applications to the court. That is always a matter of concern, because every application fuels the fears and makes eventual resolution the more difficult. That is a fact of this family's life that the father has to grapple with. He is intelligent, as he appears before us, and he needs to take a careful note of the fact that whether he likes it or not, and even whether he deserves it or not, the fact is that the mother is fearful of his part in the children's life, and every application he makes simply intensifies the fear and does nothing to diminish it.
There came a time on 5th August when His Honour Judge Cox ordered that there should be three sessions of supervised contact. Those sessions were held as between father and his boys whom he had not seen for a considerable time. They were remarkably successful, to the surprise of the experienced welfare officer who supervised these meetings. It also appears, however, that the children reacted adversely the moment they got back to the mother's home. It is part of the familiar scene. The judge, therefore, had to deal with the difficult question of whether contact should be stopped altogether (that is face to face contact which was the mother's case) or whether the father should be allowed unsupervised access once a fortnight, or howsoever may be appropriate. These are never easy cases to resolve.
The judge had the father appearing in person. There is a ground of appeal before us complaining of having been denied a McKenzie friend. It emerged from the submissions of Mr. Cadin that the refusal occurred at an earlier hearing and may or may not have been influenced in part by the personality of that particular McKenzie friend. The father simply does not know. He feels the burning injustice of having been besieged with paper and coping with the difficulty of the management of that paper and the conduct of the litigation. I have considerable sympathy for him. It is always difficult, and the more emotive and important the issue to the litigant, often the more useful it is to have the restraining influence of a McKenzie friend. The value was demonstrated in this court when we asked for assistance as to a certain passage of evidence to which the father had made reference. That was left to the gentleman here, who was not the gentleman against whom any possible objection could have been taken in July. The answer was forthcoming. It showed the virtue of how the McKenzie friend is to operate. It is, therefore, a matter of regret that the father was denied that assistance. The judge would not have had referred to him a decision of this court given by me in the case of Re H (Chambers Proceedings: McKenzie Friend) [1997] 2 FLR 423. Provided that the McKenzie friend acts with restraint, he is often a useful assistant to the conduct of the litigation. I am not, however, satisfied that the absence of a McKenzie friend placed this father under such a severe disadvantage that the whole conduct of the hearing was so totally flawed that we should send it back. To send it back at this stage for a full rehearing for another 4 days would be wholly adverse to the best interests of these children. For my part, I am not prepared to take that course.
I turn to the judge's treatment of the crucial issue of contact. He placed at the forefront of his decision the appropriate test that the best interests of the children had to dominate his decision. He correctly directed himself that the decision did not depend on the best interests of the mother or upon her wishes, nor indeed of the father and his wishes, and so he tried to stand back and take a judgment as to what was in the best interests of the children at that stage. He referred to the evidence of the court welfare officer and commented on how well those visits went, where the children were much more positive towards the father and affectionate towards him than she had expected. I have read the addendum to the court welfare officer's report. It seems to me to be plain that this is a father who has the capacity to recognize and meet his children's needs, as the court welfare officer observed. He was keen to get down to their level and enjoy his time with them. She concluded that, on the basis of those three visits alone, the indications are that K and C had enjoyed seeing the applicant and could derive positive benefits from contact continuing, but she had also to report to the court that, from what she had seen of the children subsequently and from what she had heard from others, particularly the social worker involved in the case, she was concerned that the mother's fears had not been allayed and that the best recommendation that she could make, in the interests of the children, was against further direct contact between them and their father. She concluded that if the mother's confidence and capability as a parent were undermined by contact, that would have an adverse impact on the children's stability and security and would be contrary to their best interests. Acknowledging the difficulty of the balancing exercise, she recommended against the immediate resumption of direct contact. That was also the view of the consultant child psychiatrist who had reported, initially at least, without ever having seen the children. In her opinion, she concluded on balance, putting the children's welfare paramount, that it could be more destructive to the children to be living in an environment of fear, anxiety and enmity because of the mother's fears, and that it was more damaging to the children to endure that atmosphere than losing the immediate benefit of their relationship with their father. She concluded that it would be necessary to wait until the mother is ready and, in her opinion, that might take as long as two or three or even five years. The judge immediately expressed his dissent and was certain, as I am, that it should not take five years.
The judge heard the father. He does not refer (this is a source of contention by the father) to much of the supporting evidence that had been placed before him. It is a pity that the judge did not deal with that but it is probably not crucial in the context of this case, because the issue is not so much as to the capacity of the father to be a good father, but as to the capacity of the mother to be able to cope with the contact taking place in such a way as does not have her anxiety spill over to affect adversely the behaviour of her children. He said of the mother that she was truthful. It is important that I repeat this passage in his judgment (page 11G). The judge repeated evidence in which she said this:
"'I would co-operate with indirect contact, and encourage the twins to write back when they were written to', and to take the necessary steps to carry out her side of the proposition."
That, it appears to me, was a fundamental finding of the judge, and an important finding in the balance which he had to strike. We have not gone into any fresh evidence of what has happened since that order was made, but it does seem, on the mother's own admission through her counsel, that she has not been successful in ensuring that her children, young though they are,...
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