Re T (A Child: Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Date | 2002 |
| Court | Court of Appeal (Civil Division) |
Contact order – Contact with father – Alienation – Mother’s opposition – Child’s wishes – Whether judge sufficiently addressing origins of child’s alienation.
The father, a United States citizen, and the British mother married in 1988. In 1991, they had a child, JW. In 1994, the mother left home with JW. The father issued his first application for contact almost immediately after the separation. There was also a contested ancillary relief application. A regime of contact was agreed and operated successfully for several years. Relationships within the father’s family were difficult and the father’s brother contacted the mother and alleged that the father was unfit to have continuing contact with the child because of the father’s abuse of alcohol and prescription drugs. The mother applied for a suspension of contact and the judge set out a regime for the testing of the father’s alcohol and drug levels, and suspended contact in the interim. The father complied with the testing regime. By consent, it was ordered that the father continue tests on the basis that there be supervised staying contact with the child. A period of contact followed, at the conclusion of which the child had expressed how much he loved and missed his father. By the time of the next contact period, a fortnight later, the father had been met with distressing opposition from his child who called his father a liar and a drunk. That development necessitated a return to court, where a report from a CAFCASS officer and further attempts at contact were ordered. Later attempts to transfer the child to the father’s charge were unsuccessful as the child declined to co-operate, making allegations of the father’s use of drugs and drink, threatening behaviour with hand guns whilst in the United States, and homosexuality. By the time the matter came to trial, tests on the father showed clear evidence of excessive alcohol consumption. At trial, it was conceded that the father had abused prescription drugs and alcohol and he agreed to undergo treatment and a psychological assessment. In respect of the question of what had caused the child’s sudden and adamant refusal to stay with the father, the judge had no evidence from a child psychologist, and rejected the unequivocal view of the CAFCASS officer that the child had been led into rejecting the father by the mother and her family. The judge found that the father’s brother had acted unscrupulously as part of a campaign of revenge but that the mother had been honest and not malignant, and that the child’s hostile attitude could be explained by a number of other factors. The judge adjourned the mother’s application for the suspension of
contact and ordered that, in the interim, the father should have indirect contact only. The father appealed against that decision on the ground, inter alia, that the judge had erred in failing to adequately address the origin of the child’s alienation and whether the mother had induced the child’s renunciation of the father. The father further contended that, according to the jurisprudence of the European Court of Human Rights, the judge had to investigate such an issue directly by hearing from the child, with the support of psychological evidence, in order to establish the child’s true wishes and to reflect the interests at stake.
Held – The obligation to investigate the origins of alienation stemmed from conventional domestic standards, not from higher European jurisprudence. In the instant case, the judge had posited the requirement of the involvement of a mental health professional as a mere possibility whereas that involvement was urgently required in the light of the serious breakdown in one of JW’s vital relationships. At the end of the case the judge had neither children and family reporter nor any mental health expert to guide him. Furthermore, the terms of his judgment might have been understood to limit the investigation of JW’s alienation to the five factors mentioned in the judgment. Therefore, the judge had failed to address the issue of alienation sufficiently and had also failed to make sufficient findings on that issue. Accordingly, the appeal would be allowed, although the judge’s finding that the mother’s evidence was generally truthful would not be invalidated.
Per curiam. (1) Strasbourg cases suggest that the methods and levels of investigation that our courts have conventionally adopted when trying out issues of alienation may not meet the standards that arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) require. There are policy issues here that the government and judiciary need to consider collaboratively.
(2) Where a judgment is handed down by a judge of the Family Division sitting in the Royal Courts of Justice, the aggrieved party should consider in advance of the fixture whether an application to appeal is to be made. Such an application should be made when the judgment is handed down, so that the judge has an opportunity to give, on the requisite form, his reasons for rejecting the application, which might be of some value to the Court of Appeal if permission to appeal is renewed.
Cases referred to in judgmentsEagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119, CA.
Eckersley v Binnie (1987) 18 ConLR 1, QBD and CA.
English v Emery Reimbold & Strick Ltd[2002] EWCA Civ 605, [2002] 3 All ER 385, [2002] 1 WLR 2409.
Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373, [2000] 1 WLR 377, CA.
G v G [1985] 2 All ER 225, [1985] 1 WLR 647; sub nom G v G (minors: custody appeal) [1985] FLR 894, HL.
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509, [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
Knight v Clifton [1971] 2 All ER 378, [1971] Ch 700, [1971] 2 WLR 564, CA.
L (minors) (care proceedings: solicitors), Re[2000] 3 FCR 71, [2001] 1 WLR 100.
Ludlow v National Power plc [2000] All ER (D) 1868, CA.
O (minors) (family appeals), Re[1998] 3 FCR 226, [1998] 1 FLR 431, CA.
Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763, HL.
Rhesa Shipping Co SA v Edmunds, The Popi M [1985] 2 All ER 712, [1985] 1 WLR 948, HL.
Sahin v Germany, Sommerfeld v Germany, Hoffmann v Germany [2002] 1 FLR 119, ECt HR.
AppealThe father appealed from the decision of Wilson J whereby he ordered that the father should have indirect contact with his child, JW. The facts are set out in the judgment of Thorpe LJ.
Nicholas Mostyn QC and Timothy Bishop for the father.
Judith Parker QC and Deborah Eaton for the mother.
THORPE LJ.[1] The parties to this appeal married on 24 September 1988. The appellant husband is a United States citizen, aged 42. The respondent mother is British and aged 38. The only child of the marriage is JW who is almost 11 years of age, having been born on 31 October 1991. The marriage proved of short duration. The mother left the London home with JW to return to her home county of Cheshire in January 1994. Almost immediately after the separation the father issued his first application for contact. That was the harbinger of much litigation between the parties. There was a contested ancillary relief application. Judgment was given by Singer J and subsequently that judgment was reviewed in this court. In the field of contact Singer J was the judge for nearly six years until recusing, in March 2001, when the mother filed a statement from the husband’s niece M, whom Singer J had represented in historic proceedings between M’s father, PT and M’s mother. The contact regime which Singer J nurtured resulted in the father having half the school holidays and half terms, with additional weekends.
[2] The summary of this period of the post-separation history is to be found in the judgment under appeal at p 29. Wilson J said:
‘But I am clear that there was fault on both sides, albeit perhaps in unequal proportions. The father was insufficiently thoughtful of the mother’s natural concerns in respect of arrangements for her young son. The mother came, so I believe, to look upon the father’s contact as an unwelcome source of trouble and anxiety, albeit as something which she accepted had to take place and which JW enjoyed, and she was not motivated in any way to exceed the strict parameters of what had been ordered or agreed.’
The regime sanctioned by Singer J took its final shape by an order of 21 October 1999, and that endured until the mother’s current application to suspend contact which is still a live application.
[3] I move to the autumn of 2000 when the paternal grandmother, AT, died in the United States. That preceded JW’s Christmas staying visit and undoubtedly contributed in some degree to the father’s heavy drinking throughout that Christmas holiday period.
[4] The relationships within the T family are unusually complex. That is demonstrated by an incident on 2 March 2001 when the father was assaulted quite severely by his elder brother, P. The assault was the source of a major family battle. The father involved the police and his brother was charged with a criminal offence. Ten days after the assault the maternal grandfather in this jurisdiction, Mr JF, received a telephone call from PT, alleging that the father was essentially unfit to have continuing contact with JW as a result of his dependence on alcohol and prescribed drugs. Ten days after that the mother issued her application for the suspension of contact. An order was made by Black J seven days later. She set out a regime of testing of samples for drug and alcohol levels, and in the interim suspended direct contact. The testing regime which was set up pursuant to this order produced results that on their face were negative. The father on 3 May issued a cross application for interim contact and for an early listing of the mother’s prior application. That led to a conciliation hearing on 9 May in the Principal...
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