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Home > Judgments > 2013 archive

W (Children) [2013] EWCA Civ 335

Appeal from order refusing applications for direct contact and parental responsibility.

The Father applied for orders for contact and parental responsibility in respect of the parties' one child, R, born in April 2006. The parties' relationship broke down during the mother's pregnancy. There was contact by agreement until September 2007. The Court of Appeal did not record the history of the intervening period, but the father, in due course, made his applications in the Family Proceedings Court.

The Cafcass officer reported that the mother had such a fear of the impact of contact on R that (although it was not objectively justified) the risk of contact was such that it could not be contemplated. She described the case as unique in her experience in that respect. The father appealed, initially to HHJ Vincent, who refused the appeal, and then, with leave of Ward LJ following an oral hearing, to the Court of Appeal.

The Magistrates also dismissed the father's application for a parental responsibility order, holding that "it has been established that this mother has such a real fear of father playing any role in her child's life.  If father were to exercise the inherent powers of PR we are satisfied that this would significantly adversely affect R's future stability and wellbeing."

On the issue of contact, the Court of Appeal held that the Magistrates' decision was not susceptible to challenge and was based on findings open to them. It therefore dismissed the appeal on that point.

However, the Court of Appeal allowed the appeal on the refusal of parental responsibility. Thorpe LJ held that the Magistrates had not applied the principles contained in the "leading  judgment" on PR, namely Re C & V [1998] 1 FLR 392 (which, it transpired, had not been brought to the Magistrates' attention). Thorpe LJ quoted the key passage of Ward LJ's judgment from that case:

"These are wholly separate applications and it should be understood by now that a parental responsibility order is one designed not to do more than confer on the natural father the status of fatherhood which a father would have when married to the mother.  There is also a sad failure fully to appreciate, when looking at the best interests of the child (which are paramount in this application, as elsewhere) that a child needs for its self-esteem to grow up, wherever it can, having a favourable positive image of an absent parent; and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it."

There had not been an outright recommendation made by the Cafcass officer as to whether the Court should make a parental responsibility order. Further the Magistrates had erred in their approach to parental responsibility in that it "seem[ed] that they reasoned their way to the refusal of the parental responsibility application by concluding that the two applications were firmly interlinked, were effectively in the same boat and if the reason for refusing one was sound then the same reasoning directed the outcome of the other" (per Thorpe LJ at [9]).

HHJ Vincent had held that the Magistrates would also have been justified in declining to make a parental responsibility order on the basis of the absence of an existing or sufficient relationship beyond biological connection between the child and the Father. Thorpe LJ found that it was not a fair characterisation that the Father had nothing beyond a biological connection and if HHJ Vincent was endeavouring to "rescure" the Magistrates' decision by the addition of this alternative ground for refusal, he was not persuaded that he was entitled to do so.

McFarlane LJ agreed with Thorpe LJ. He added that in cases where there was no direct contact with young children, applications for parental responsibility had to be looked at carefully and the parental responsibility application should be given greater prominence than in a more straightforward case. Referring to observations he had made in Re W (Direct Contact) [2013] 1 FLR 494, he stressed that both parents had responsibilities to see whether there was a way in which the child could be brought up to have a favourable view of the father. He commented that at the core of the case was a problem of human relationships, not easily resolved or ameliorated in a courtroom.

Appeal allowed in part.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers



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Case No: B4/2012/2152
Neutral Citation Number: [2013] EWCA Civ 335

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
(HIS HONOUR JUDGE VINCENT)

Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday, 20th February 2013

Before:

LORD JUSTICE THORPE

LORD JUSTICE McFARLANE


and

LORD JUSTICE DAVIS
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IN THE MATTER OF W (A CHILD)
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(DAR Transcript of WordWave International Limited
A Merrill Communications Company
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Tel No:  020 7404 1400  Fax No: 020 7831 8838
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Ms Claire Wills-Goldingham QC (instructed by Goldbergs Solicitors) appeared on behalf of the Appellant father.
Ms Gina Small (instructed by Gill Akaster Solicitors) appeared on behalf of the Respondent mother.
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Judgment
(As Approved)

Crown Copyright©

Lord Justice Thorpe: 
1. The parties to this appeal are the parents of a little boy, R, born in April 2006.  The relationship between the parents was relatively transient and broke down in the late stages of the mother's pregnancy.  Father was present at R's birth and thereafter had contact by agreement and arrangement until September 2007.  The intervening period between that date and the first judgment that is before us I pass over, and simply record that the father was the applicant in private law proceedings in the Cornwall Family Proceedings Court and what he sought from the Justices was an order for what I might call normal contact to his son and also an order for parental responsibility. 

2. It is very clear that the Magistrates took a lot of trouble in the case and investigated issues of fact thoroughly and carefully.  They had the assistance of a Cafcass Officer, Mrs Beer, who they described as being "very experienced in both public and private law cases".  They refused both applications, reasoning the refusal of direct contact relatively fully, and in conclusion before registering an indirect contact order they said:

"The court must accept the evidence and recommendations of the CAFCASS Officer unless there are cogent reasons to depart from the recommendations.  For the reasons outlined the court finds there are not the grounds to depart from Ms Beer's recommendations."

Ergo, there followed an order limited to cards and gifts twice a year, birthday and Christmas, and in reverse order an order for the mother to send school reports at the end of each term.  The mother's obligation was misunderstood, in the sense that clearly the Justices thought that there would be term reports whereas it transpires that there is simply an annual report at the end of each summer term.

3. The case is unusual in that the recommendation of the Cafcass Officer reflected her firm conclusions that the mother had such a fear that the impact of contact on R, who was well settled in her primary care, who had as it were adapted to a psychological father in mother's present apartment, would be such as to cause harm or risk of harm and it was simply not a risk that could be contemplated.  She accepted that there were no objective foundations for the mother's anxiety.  She had accepted that they were essentially subjectively based rather than objectively based and that led her to describe the case and the basis of her recommendation as unique in her experience.  The Justices' explanation of their refusal of parental responsibility must be cited in full.  They said:

"The court has considered the case law provided by Counsel in relation to this application.  The Court has considered the welfare checklist and the paramoncy principle. 

The Court has not granted an Order for PR [parental responsibility] because it has been established that this mother has such a real fear of father playing any role in her child's life.  If father were to exercise the inherent powers of PR we are satisfied that this would significantly adversely affect R's future stability and wellbeing."

4. The father obviously had an absolute right of appeal provided he exercised it within the time provided by the Rules, and so it was that HHJ Vincent came to deliver judgment on 20 July 2012 on the father's appeal.  It had, of course, two limbs.  He challenged the refusal of direct contact, and he challenged the refusal of parental responsibility.  He failed in both, and again I will cite what HHJ Vincent had to say about parental responsibility:

"I just want to go back to the parental responsibility.  They dismissed the application not actually for the wrong reason, they dismissed it because they were alert to the danger that an exercise of parental responsibility by the father would be likely to occasion the same type of harm to R as would direct contact.  But the central reason that they could have relied upon was that he had no existing or sufficient relationship with R beyond the biological connection, and had sadly, this is not his fault, the opportunity to demonstrate a commitment to the child in any meaningful sense.  There can be no criticism of the decision on parental responsibility.  They were plainly right about that."

5. A second appeal brought the father up against section 55 of the Access to Justice Act 1999, which prevents this court from granting permission for a second appeal unless there is some important point of principle or practice involved in the application or some other compelling reason.  The application was refused on paper by Black LJ, but by the time of oral renewal Ms Wills-Goldingham QC had come into the case, not having appeared below.  She had the good fortune to appear before Ward LJ on 8 November.  I say the good fortune because Ward LJ has given what is the leading judgment on the proper approach to the determination of an application for parental responsibility.  His judgment in the case of Re C & V [1998] 1 FLR 392 is a classic judgment in this field.

6. This morning we have heard Ms Wills-Goldingham validly attempt to persuade us that the Justices should not have elevated the subjective concerns of the mother to the height of obstructing the development of a normal contact relationship between the father and child.  In response, Ms Small, who appeared below, has said that the Justices had the unique opportunity to assess the sincerity of the mother's emotion as well as its strength and this court should not interfere with the judgment of HHJ Vincent, which upheld the Justices on precisely that basis.  It was for them to investigate, it was for them to assess and it was not for him to interfere. 

7. I would uphold Ms Small's submissions in that regard and say that the appeal against the refusal of contact order fails.  I would only in passing note that Ward LJ concluded his observations by saying:

"I will give permission to appeal the parental responsibility order.  The contact order is much more difficult.  This was a finding of fact made by the Justices but because it is getting close to Christmas and not much will be added by dealing with contact, I will for that compelling reason allow the appeal on contact to proceed."


So it can be said that the view that I would take on the contact appeal chimes with the initial assessment of Ward LJ.

8. The appeal on the parental responsibility order is altogether more soundly-based.  First, the Justices did not have a recommendation from Mrs Beer that inhibited departure without proper reason.  Although Ms Small did in her submissions suggest that there had been a negative recommendation from Mrs Beer, when we investigated her written report and the note of her evidence to the Justices it was plain that she simply left it to them to decide the point.  There is an overall impression that the Justices followed this path in their process of decision-making.  They concluded that direct contact risked real harm to the child therefore it should not be attempted at this stage of his life.  They reached that conclusion not on the basis of any findings against the father but simply in recognising and accepting the mother's stress. 

9. It seems that they reasoned their way to the refusal of the parental responsibility application by concluding that the two applications were firmly interlinked, were effectively in the same boat and if the reason for refusing one was sound then the same reasoning directed the outcome of the other.

10. If that was their approach then it was clearly an erroneous approach.  When they recorded the authority that had been relied upon by counsel on the contact order application, they specifically recorded that they had considered the decisions in Re O, Re P and Re A.  But in simply saying in the two brief paragraphs on the parental responsibility application the court has considered the case law provided by counsel, they do not specify what authority had been cited.  So we have carried out an investigation of what was relied upon by Ms Small, and that seems to have been principally a decision of Hedley J at first instance in the case of TJ v CV [2007] EWHC 1952 (Fam) , decided on 9 August 2007, and the case of Re H [1998] 1 FLR 855 and the relevant passage in Hershman and McFarlane.

11. But neither court appears to have cited what I have already labelled the leading case in the field.  Had they had the citation from the judgment of Ward LJ, they would have heard this paragraph:

"These are wholly separate applications and it should be understood by now that a parental responsibility order is one designed not to do more than confer on the natural father the status of fatherhood which a father would have when married to the mother.  There is also a sad failure fully to appreciate, when looking at the best interests of the child (which are paramount in this application, as elsewhere) that a child needs for its self-esteem to grow up, wherever it can, having a favourable positive image of an absent parent; and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it."

Had that citation been large in the mind of the Justices, I very much doubt that they would have refused the father simply on the speculative anxiety that, were he to exercise the powers of parental responsibility, that would significantly and adversely affect R's future stability.  I surmise that HHJ Vincent did not have much confidence in the adequacy of that reasoning, and that is why in the paragraph that I have cited he introduces an alternative support for the refusal, which he expresses as the absence of no existing or sufficient relationship beyond the biological connection.  HHJ Vincent was not investigating fact or finding fact, as he himself very plainly stated, and Ms Wills-Goldingham has pointed out that it is not a fair characterisation that the father had nothing beyond a biological connection.  The connections beyond the purely biological I have already recorded.  So if HHJ Vincent was endeavouring to rescue the Justices from the consequences of rather shaky rationalisation, I am not persuaded that he has done so or was entitled to do so in the passage that I have cited. 

12. So I do reach the conclusion that the Justices misdirected themselves in law and that when the case came on appeal to HHJ Vincent he should have been more rigorous in his analysis of the reasoning which I have cited.  I would stress that this father, very far from avoiding acknowledgment of paternity since the issue of proceedings, seems to have pursued it doggedly.  He must be sensitive to the mother's concerns, which were expressed by Ms Small as the potential to interfere with his schooling, the potential to interfere with his medical treatment, the potential to interfere with his religious upbringing.  The father obviously must hear what has been expressed and respect it.  He must obviously behave with discretion and moderation and good sense.  For if he does not, he will display an irresponsibility which will count against him in any future application that he may bring for an extension of indirect contact or for direct contact itself.  But insofar as there is an inter-relationship between the two applications, it might be well be said that the refusal of the application for direct contact in one sense fortifies the making of a parental responsibility order, which goes essentially to status, his status as a father. 

13. So I would allow the appeal only to that extent, and propose the making of the parental responsibility order that the Justices refused.

Lord Justice McFarlane:
14. I agree with all that my Lord, Lord Justice Thorpe, has said, and with the outcome for this appeal that he has just described.  But I would wish in a few short words to enlarge upon a matter that he mentioned towards the very end of his judgment.  This is an unusual case where the issue of parental responsibility fell to be considered against the backdrop of a young child who has had no active direct relationship, face-to-face contact with his father, since the very early months of his life.  That state of affairs led HHJ Vincent to justify the decision not to make a parental responsibility order by referring to the fact that father "had no existing or sufficient relationship" with the child.  As a matter of fact that statement is correct.  But where in an unusual case such as this the reason for their being no direct contact is largely due to the mother's incapacity to contemplate direct contact and not out of anything of itself in the father's behaviour which justifies refusing contact, the matter needs to be looked at more carefully.  My Lord, Lord Justice Thorpe, is right to say that in these circumstances the parental responsibility application should be given greater prominence even than it might in a more straightforward case.  In making that observation, I refer particularly to one phrase encapsulated within the citation my Lord, Lord Justice Thorpe, has already taken from Ward LJ's judgment in Re C & V. The phrase is this: "a child needs for its self-esteem to grow up, wherever it can, having a favourable positive image of an absent parent".  That is at the core of Ward LJ's justification for granting parental responsibility in an appropriate case.

15. The second point I wish to emphasise in linking parental responsibility with cases where contact is proving difficult to establish at all is to refer to observations that I made in a recent decision of Re W.  I quote two parts of two paragraphs.  In paragraph 76 I said:

"Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent."

And then 78:

"Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child's needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say 'no' to reasonable strategies designed to improve the situation in this regard."

16. This case before us is one riven with very substantial difficulties.  Both parents, as my Lord, Lord Justice Thorpe observed during submissions, are human beings, each with benefits and detriments, capacities and incapacities to bring to the task of establishing a healthy relationship between their son and each of his two parents.  The stand-off in the case is not one readily capable of resolution as a legal dispute with lawyers and judges in a courtroom.  It is a problem of human relationships, and in the end it only will be resolved or ameliorated by a change in the key human relationship between the parents, assisted one hopes by the wider family.  The granting of equal status, namely that of parental responsibility to this father, is not simply a matter of ticking a box; it is to do with status.  He now has the status of a father with parental responsibility but the word, I would stress to both him and the mother, is not the word "rights" which they will read into the lines of that phrase, but the word "responsibility", which is plainly written on the label.  They each have a responsibility now to look to each other, to look to their child, to see whether there are ways, despite the stand-off, despite the court order, in which this boy can be brought up to have the favourable positive image of the absent parent to which Ward LJ refers.  It will not be easy.  It will take both of them to understand and empathise with each other and to begin to meet each other even a quarter of the way will be a step in the right direction.  One hopes the wider family will assist them.

17. With that short lecture, but more importantly those observations about parental responsibility, I entirely endorse the outcome my Lord, Lord Justice Thorpe, has described.

Lord Justice Davis:
18. I agree with both judgments.

Order:  Appeal allowed