Re W (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Tomlinson,Lord Justice Rix |
| Judgment Date | 24 July 2012 |
| Neutral Citation | [2012] EWCA Civ 999 |
| Docket Number | Case No: B4/2012/0548 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 2012 |
[2012] EWCA Civ 999
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWINDON COUNTY COURT
HER HONOUR JUDGE MARSHALL
SN08P02829
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Tomlinson
Lord Justice McFarlane
Case No: B4/2012/0548
Miss Sarah Evans (instructed by Devereux & Co.) for the Appellant Father
Miss Grace Ong (instructed by Family Affairs Solicitors) for the Respondent Mother
Miss Hari Kaur (instructed by NYAS) for the Respondent Children
Hearing date : 28 May 2012
This appeal arises out of private family law proceedings in relation to two children A, a girl, born 17 th June 2003 and therefore now aged nine years, and B, her sister, born 10 th July 2006 and therefore just six years old. The children's mother ("M") and father ("F") are not married but were involved in a close relationship between 2002 and 2008, being together throughout that time save for a period of some six months separation in the latter part of 2003. In 2004 the parents purchased a property together which provided a home for themselves and the two children.
On 1 st May 2008 M left the family home taking the girls with her without giving F any form of advance warning. Instead, she left a solicitor's letter for F to find on his return home. She moved to another town in the same region and enrolled the eldest girl in school, again without notifying or consulting F. Solicitors' letters then began to be exchanged over the issue of contact.
F commenced proceedings seeking orders for parental responsibility and contact on 16 th May 2008. The question of parental responsibility was readily resolved by the signing of an agreement on 12 th June 2008. F therefore has parental responsibility for both of his daughters.
On the 3 rd February 2012 these proceedings concluded when Her Honour Judge Marshall dismissed F's application for direct contact to his children, but directed that M should facilitate indirect contact in the form of appropriate cards, letters and gifts between F and the children at the frequency of once per month. The judge did not rule out 'future contact at a time when the children are older'. It is against that order that F now appeals.
Background
Initially, following the separation, the question of contact was resolved by consent on the basis that the girls would stay with F every other weekend and on some additional occasions. During the second half of 2008 the relationship between the couple was on amicable terms, but that state of affairs ceased in about November 2008 following a number of arguments which included M expressing concern about the children visiting the paternal grandparents. On 27 th November 2008 M made an application for a residence order and for a prohibited steps order preventing the children from being removed from her care. She also applied for and obtained, without notice to F, a non-molestation order under the Family Law Act 1996 based upon allegations that she made of significant violence against her by F.
M's allegations that F had behaved abusively to her were set down for a fact finding hearing on 16 th January 2009. There were ten specific allegations. A District Judge heard evidence but felt unable to find any of the allegations proved, save that F conceded on one occasion in 2004 that he had spat at M. In addition the judge concluded that: "F is a forceful character whom M finds difficult to deflect and resist. It is difficult for her and causes her anxiety which may well reflect on the children who may sense that."
Notwithstanding M's failure to establish almost all of the factual allegations relied upon, the non-molestation injunction remained in force and F was arrested on a number of occasions in early 2009 for allegedly breaching it's terms, some of the alleged breaches relating to a period before the January hearing.
Despite the fact that the judge on 23 rd January 2009 made an order for F to have weekly direct contact with the two children for most of the day every Saturday for the following three weeks, M, in part relying on allegations of breach of the injunction, failed to comply with the contact order and, unsuccessfully, sought to have it suspended. An order in similar terms was made on 13 th March 2009, with the first visit actually taking place on 11 th April. Two further contacts took place on 18 th and 25 th April 2009. Contact was to a degree hampered by F's bail conditions, which arose from the criminal process relating to the alleged breaches of the injunction. However, although M stated in a court statement dated 1 st May 2009 that she was "happy to consent to the children having regular contact with their F on the condition that he remains within the ambit of the court order and does not allow the children to have any contact with his father", no further contact actually occurred. It follows that the last occasion on which F saw his children was 25 th April 2009.
From mid 2009 onwards the issue of what, if any, contact F should have with the children has been before a circuit judge. In July 2009 the children were joined as parties to the proceedings and provision was made for them to be represented by the National Youth Advocacy Service ("NYAS"). By this time M had made allegations that the eldest child, A, had stated that the paternal grandfather had touched her inappropriately and had locked himself in a room together with the two girls. A had undertaken a police and social work ABE interview, in the light of which the police had declined to pursue any allegations against the grandfather. The circuit judge, understandably, felt that matters could not be left there and a fact finding hearing was listed for March 2010. The grandfather was given leave to intervene. In the interim, M was ordered to make the children available for contact with F as required by NYAS. However, the NYAS worker, Mr C, encountered considerable difficulties because the children maintained that they did not wish to see F and became very distressed when the topic was raised. In turn, F became frustrated, distressed and angry and spoke to Mr C in a manner which he now accepts was entirely inappropriate and intimidating.
In December 2009 leave was given for the instruction of a child psychologist with a report to be filed in May 2010. Despite this lengthy timetable, it appears that there were substantial delays in drafting a letter of instruction, and the expert report, by Dr G, was not in fact filed until the end of September 2010, some 10 months after permission was given to instruct an expert.
On the occasion in March 2010 for the fact finding hearing into allegations against the paternal grandfather, the hearing was vacated. The court order contains the following recital: "And upon the court noting that M does not wish to pursue the allegations of physical and sexual abuse against the PGF on the basis that the evidence is such that the court would be unlikely to be able to find the allegations proved to the necessary standard" and "And upon the court, all professionals and experts henceforth proceeding on the basis that the alleged physical and sexual abuse by PGF of the children did not happen".
Having referred to past findings of fact, it is of note that F was arrested on a number of occasions for alleged breaches of the non-molestation order. Such breaches are to be dealt with by a police prosecution in the criminal court under FLA 1996, s 42A. There is no indication on the case papers that any of these alleged breaches have actually been prosecuted and, therefore, no indication that any of the alleged breaches have in fact been established.
Dr G, who is a consultant clinical psychologist, filed her main report in September 2010. The key points of her analysis are as follows:
a) The eldest child, A, exhibited abnormalities in psychological functioning consistent with a protracted experience of stress and, probably, of emotional distress.
b) These abnormalities are part of a complex defensive strategy developed by A as a result of the extent of the distress that she has experienced within her family and between her parents.
c) When she was a child, M experienced domestic abuse in the relationship between her own father and mother.
d) Whilst the specific allegations of violence raised against F were not proved at the fact finding hearing, both parents accept that at times F was angry, shouted at M, called her names and spat at her. M continues to be very afraid of F.
e) F has difficulty in understanding the emotional states of others and does not accept that M is afraid of him.
f) The child A has been left with a feeling that F, and perhaps men generally, have the capacity to cause harm, pain and engender fear. Her refusal to see F is part of her defensive strategy and is not based upon a genuine desire not to see F, whose company she has enjoyed and whose ongoing presence in her life she needs.
g) A may be in a position where she feels unable to manage the internal conflict associated with developing a relationship with F.
Dr G recommended that A would require reassurance that she can have a relationship with M and, at the same time, develop a relationship with F. Both children will require "long term desensitisation to contact" with F which must be managed by a trusted adult, for example the children's guardian. Dr G recommended therapeutic intervention for F to facilitate the development of his emotional awareness and empathy and, secondly, to assist him in controlling his anger. M could benefit from some assistance in supporting the children in contact...
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A (A Child)
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