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G (A Child - Intractable Contact) [2013] EWHC B16 (Fam)

Consideration of the principles to be applied in considering contact in cases of protracted litigation and high conflict parental disputes.

The application concerned a girl ("G") who was 13 years old. The father applied to vary a contact order made on 14 March 2006 ("the order"). The order was long and restrictive. The key provision which the father sought to change was the frequency of direct contact which was set at 3 times a year.

The mother was a 47 year old teacher. The father was a 56 year old retired police officer. The parents met in 1996. They married in 1997 and separated 3 weeks before G was born. The first application for contact was issued when G was 10 weeks old and for the first six years of her life litigation between her parents was constant. Within these proceedings G was made a party to the proceedings and a CAFCASS officer was appointed as her guardian ad litem. By the time of the final order on 14 March 2006 there had been more than 40 court hearings.

In the early days of the litigation the father was having frequent contact including, for a while, overnight contact. There were consistent reports of good quality contact between G and the father and of a warm and loving relationship between them. A sad and complicating factor in the case was that G was diagnosed as suffering from cancer in 2003. She was having regular in-patient stays in hospital albeit the father was having regular contact with G both when she was receiving in-patient treatment (chemotherapy) and when she was at home. A further complicating factor was the attitude of the father towards the mother, the professionals in the case and generally. The court accepted that G enjoyed contact but concluded that G was being adversely affected by the proceedings and by the behaviour of the father. Of particular concern to the court was the father's lack of insight into his intimidating and rigid behaviour and the impact of it on others and the extent to which he undermined the mother as primary carer.  His pursuit of contact with G was described as "an obsession".

The father was the subject of a psychological assessment undertaken in 2004 by Dr John Richer, a Consultant Clinical Psychologist at the John Radcliffe Hospital in Oxford. Dr Richer identified that when under stress within relationships the father could exhibit significant mood swings and at times, aggressive and frightening behaviour. He also highlighted that the father overindulged G, and to an extreme level, and his attitude to her was almost an obsession. Dr Richer recommended a period of psychotherapy and contact two or three times a year. Finally, Dr Richer concluded that G's attachment status was ambivalent insecure.

Dr Bryan Tully, clinical psychologist, also reported in 2004. He identified that the father was exhibiting a degree of depressive mood and had a "pre-occupied" attachment style. Dr Tully believed the father was unlikely to make major psychological changes.

At the final hearing on 14 March 2006, the key provisions of the order provided for direct contact three times a year, indirect contact at significant festivals and in the months when no direct contact was to take place. This order was made by consent. The order included a comprehensive prohibited steps order restricting the father's contact with professionals involved in G's life and an order pursuant to s.91(14) Children Act 1989 which was to continue for a period of six years until 30 April 2012.

The father made two applications for permission to apply to vary the contact order in 2009 and 2010. The first led to an order in respect of the provision of school photographs/DVD. The second application was dismissed and he was ordered to pay the mother's costs.

The s.91(14) order expired on 30 April 2012. The next day the father wrote to the mother asking her agreement to contact being extended with an immediate increase to two Saturdays a month for two months, to be followed by significant additional contact during the 2012 summer school holidays including staying contact. This was not agreed and the father issued an application on 26 June 2012.

The first CAFCASS report recommended that contact should be increased to one full day a month and telephone contact at agreed times. This report was prepared without G's wishes and feelings being ascertained. On 2 November G was made a party to the proceedings and National Youth Advocacy Service ('NYAS') accepted the appointment as Children's Guardian.

The father sought increased and regular contact with G and asserted that this was also the wish of G. This was not G's wish as communicated to her guardian who stated she wished contact to take place six times a year but not overnight. The mother opposed the extensive contact sought by the father on the basis that the father demonstrated little change since 2006. The mother did however accept that contact should be increased and she would support G if she asked for additional contact. However, the mother expressed deep concern that as G became older the father would seek to browbeat her and if contact was more extensive there was a real risk the father would use emotional pressure to coerce G into agreeing to more and more contact.

The NYAS caseworker had met G eleven times and observed two contacts between G and the father. The observations of contact were very positive and the caseworker observed that G loved her Dad very much and enjoyed seeing him. The court identified that a key issue was whether the father had moved on since the earlier litigation. It was the caseworker's view that the father had not done so, he accepted little responsibility for his behaviour in the previous proceedings and would be as single-minded in pursuing the relationship he wanted with G as he was prior to 2006. In this regard therefore the risk of manipulation and controlling remained and placed G at risk.

The trial judge considered the approach of the court in Re S (Transfer of Residence) [2010] EWHC 192 (Fam) , and the recent decision of  Re A (A child) [2013] EWCA Civ 1104 and observed that an application in respect of residence and contact would fall into the category of cases in which a trial judge's task is to comply with an obligation under HRA 1998, s 6(1) not to determine the application in a way which is incompatible with the Art 8 rights that are engaged.

The judge evaluated the wishes and feelings expressed by H and considered whether they were rational, congruent and genuine. He was satisfied that the wishes and feelings which G has consistently expressed to the NYAS caseworker were rational, congruent and genuine and she was not simply expressing the views of the mother. The judge accepted that G's emotional welfare required that she be protected against the kind of behaviour previously exhibited by the father and acknowledged that she would also be distressed if contact was ordered which departed from that which she had requested or objected to.

The judge accepted that if there were any repetition of the father's previous behaviour there was a real risk that that would cause G emotional harm. The judge observed that the mother may have over-protected G but accepted that the father lacked insight into his behaviour, and there was little real change in his understanding of his behaviour and its impact on G since 2006. The judge was therefore not satisfied that the father was able to meet G's emotional needs.

The judge HHJ Clifford Bellamy sitting as a judge of the High Court, endeavoured to provide for an order which would endure, avoid further application and which was practical and workable and which, in the event of non-compliance, offered a realistic possibility of it being successfully enforced.  The judge ordered direct contact during holiday periods on 8 occasions a year. Indirect contact remained as previously ordered albeit that G was able to contact her father by mobile phone as and when she wished with limitations set out as to the manner in which the father could respond to this communication. Finally, the judge granted a further s.91(14) order in respect of the father to continue until G's 16th birthday. 

Summary by Alison Easton barrister, Coram Chambers

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This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.

CASE No LE12PO0267
IN THE HIGH COURT OF JUSTICE                               
FAMILY DIVISION
LEICESTER DISTRICT REGISTRY

Before

His Honour Judge Clifford Bellamy
Sitting as a Judge of the High Court
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Re G (A Child: Intractable Contact)
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Miss Ann Williams for the father
Mrs Kathleen Hayter
for the mother
Mr Simon Warlock
for NYAS

Judgment handed down 25 September 2013
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JUDGMENT
1. G is 13 years old. Her parents are JD ('the mother') and TN ('the father'). The father applies to vary an order made by His Honour Judge Brunning on 14 March 2006. The order is long and detailed. I consider the detail of the order later in this judgment. The key provision which the father seeks to change is that which fixes the frequency of direct contact at 3 times a year.

Background

2. The mother is aged 47. She is a teacher. The father is aged 56. He is a retired police officer.

3. The parents met in 1996. They were married in 1997. They separated 3 weeks before G was born. They were subsequently divorced. G has never known a time when she and her parents have lived together as a family.

4. For the first six years of G's life litigation between her parents was constant. The father issued his first application on 3 July 2000. G was then just 10 weeks old. The proceedings continued unabated until March 2006. The contact issue became so intractable that G was made a party to the proceedings and an officer of Cafcass was appointed as guardian ad litem for her under what was then rule 9.5 of the Family Proceedings Rules 1991. In 2004 the proceedings were transferred to the High Court. By the time of the final order on 14 March 2006 there had been more than 40 court hearings.

5. The hearing bundle prepared for the present hearing contains only a fraction of the papers generated by the earlier proceedings. Those papers give, at best, a snapshot of the litigation between these parents. Despite that caveat, it is clear from the papers relied upon for this hearing that in the early days of the litigation the father was having contact much more frequently than he does today including, for a while, overnight contact. The progression of contact during the period from 2000 to 2006 was one of gradual increase during the early years followed by a gradual reduction to the very low level ordered in 2006. Given that there were consistent reports of good quality contact between G and her father and of a warm and loving relationship between them, it is necessary to explore the reasons why this reduction came about.

Guardian's evidence
6. Brenda Phillips was appointed guardian ad litem on 17 January 2003. Mrs Phillips was a very experienced and well-respected Cafcass officer. Since the order of 14 March 2006 Mrs Phillips has retired.

7. The context in which Mrs Phillips was appointed was that of long-running, complex proceedings recently made more complex by fact that the month before her appointment G was diagnosed as suffering from cancer. She was having regular in-patient stays in hospital. At that time the father was having regular contact with G both when she was receiving in-patient treatment (chemotherapy) and when she was at home.

8. Mrs Phillip's first report is dated 10 May 2003. In it, she acknowledges the importance of contact:

37. My involvement with the family has confirmed that G is a much loved little girl by everyone and it is not surprising that her parents, grandparents, aunts and uncles want to spend quality time with her. From G's point of view contact with her immediate and extended family is extremely important, not least because it gives her a sense of her family history and identity…

43. Looking at what is in the best interests of G in terms of her long-term physical and emotional security and stability, I feel that she needs to have regular contact with her father. However I am very concerned about father's attitude and behaviour, his reluctance to accept the mother as the primary carer, his lack of insight into G's medical needs which have to take priority, his continuing undermining of the mother's role with not least the nursing profession, all leave me with concerns about the effect of this on mother's ability to remain emotionally strong and the effect this will have on G.

44. The father loves his daughter and wants to be with her. He wants to play a significant role in her life and is angry and frustrated that he is not being given the opportunity to do so. The father is exhibiting classic signs of bereavement, loss of family life, loss of opportunity to be part of G's family life, despair at not being able to change how things are, angry and frustrated with the Judicial System in what he perceives as the inequality of opportunities to build on his relationship with G.

45. Despite several discussions with the father regarding my concerns, he appears unable to see anyone else's point of view. Because of the continuity of the Judiciary the Court will be well aware of the difficulties. I am left with real concerns around the ongoing issue of contact and feel that in order to protect G's best interests this cannot be allowed to go on throughout her childhood.'

9. Mrs Phillip's second report was dated 14 August 2003. It is not in the bundle and I have not seen it.  By the time of her third report, dated 3 March 2004 contact was taking place every Saturday. Handover took place at the mother's home. The guardian said that contact 'has gone reasonably well albeit initially G was reluctant to go'. Notwithstanding that relatively positive picture, the guardian once again expressed some concerns. She said,

'I firmly believe that the Applicant uses emotionally bullying tactics in order to get his own way. His behaviour, his lack of insight into the effect he has on others and the potential impact this has on any future contact arrangements with his daughter leaves me with concern. In the absence of the Applicant's agreement to a psychological assessment, it is difficult to see how the case can be progressed.

There is no doubt in my mind that G is being adversely affected by these proceedings. She loves her daddy and appears to enjoy her contact with him. However, for whatever reason, she is not feeling confident to spend long periods of time away from her mother. G has told her mother, her maternal grandparents and aunt and uncle as well as the Children's Guardian that she does not want to stay at her daddy's house…

Therefore, at present, I could not recommend any extension of contact. Indeed, I question whether G is coping with the present level of contact and whether a shorter contact day would be more appropriate. The benefit to G of a shorter contact day would be that she could see her daddy but without her apparent perceived anxiety of being separated from her mummy.'

10. Mrs Phillip's fourth report was dated 5 June 2004. She remained concerned. She suggested that 'having heard from the respective parties the Court may wish to consider a suspension of contact until the outcome of the Psychological Assessment is known'. By the time of her next report in March 2005 the mother had applied for contact to be suspended. Mrs Phillips says,

59. I have been involved in these proceedings since the beginning of 2003. Throughout that time, there have been difficulties, which have resulted in lack of trust between some of the parties and has resulted in some delays in concluding the matter.

60. The mother's application to suspend contact has not been brought lightly – it has come about as a result of long-standing issues around contact since the birth of G. The mother feels at the end of her tether and questions the effect this will have on G. She is genuinely concerned that the father's lack of insight and acceptance of the part he plays in these proceedings will impact on G's emotional wellbeing.

61. The father continues to apportion blame on anyone rather than taking responsibility for his own actions. He is perceived by many of the professionals involved in G's life as intimidating, challenging and bombastic in his attitude. Indeed, he has been told this by His Honour Judge Hall. Despite this, the father continues to use emotionally bullying tactics in order to get his own way.

62. I know from my own personal experience of being involved in this case, the effect the father's behaviour can have. I had to take the most unusual step of only seeing the father in the presence of a Solicitor, for fear of his unfounded allegations and his misunderstanding of what I had said. Similarly, some members of the medical team had the same experience. I have been fortunate in that I had the support of a CAFCASS panel manager who had had first hand experience of the father's behaviour and so was able to understand the difficulties I faced. Additionally, I have been supported and, indeed, on occasions protected from many of the accusations levelled against me by G's Solicitor and Barrister. Bluntly, there have been occasions when I have questioned whether I can continue in this case and, indeed, if the father had has (sic) way, he would undoubtedly wish me to be removed. Indeed, RT, McKenzie friend who previously supported the father has in the past threatened to do just that. Without doubt, this has been the most difficult case in which I have been involved, not as a result of the complexities of the case but wholly due to the personalities involved.

63. In my Report dated 3 March 2004, I wrote that in my view, G was being adversely affected by these proceedings. My view remains the same.

11. One of the consequences of these increasing concerns was that arrangements were put in place for contact handovers to be facilitated by the X Agency, at the father's expense. These arrangements remained in place for the next eight years.

12. Mrs Phillip's final report was dated 26 October 2005. She continued to have significant concern about the impact of the litigation on G. She said,

33. Whilst it is clear to me that G enjoys spending time with her daddy and that she would sometimes like to spend longer periods of time with him the issue of how it is managed remains…

37. It is unfortunate that this situation has continued for so long but I believe that everyone has used their best endeavours to resolve the situation. It has not been helped by the father's ongoing criticism of the professionals involved, or his attitude and behaviours to The mother…This leaves her feeling vulnerable and emotionally exhausted…

39. It is time to move on, to consider how and if contact can be managed both in the interim period and long-term. As adults we all have to take responsibility for our own action, unfortunately the way the father deals with the situation is to project himself as a victim and put the problem outside of himself. Sadly unless that situation changes I fear that there will be no solution and inevitably G will have very limited if any direct contact with her father and as a consequence her paternal grandmother.

Psychological evidence
13. In 2004 Dr John Richer, a Consultant Clinical Psychologist at the John Radcliffe Hospital in Oxford, was instructed to undertake a psychological assessment of G. In the course of undertaking this work Dr Richer met not only with G but also with both of her parents.

14. Though his report was written nine years ago, it is nonetheless relevant to note some of Dr Richer's observations about the father. He says that,

32. With G, his caring side comes out. Her needs are the focus of his attention. Up to a point this is proper, beyond that it becomes over indulgent and spoiling, and G does not learn the give and take necessary in social life. In a sense he is giving her the opposite experience to that he had from his father, he is sending her the message that her needs are all important, his father sent him the message that his needs were unimportant. Neither approach helps children become successful in their social life.

33. This focus on G is also seen in his home. In his living room one armchair was covered with neatly arranged sitting dolls. Also in the room were many toys, some were laid out on the floor. G's name was above the fireplace in wooden jigsaw letters. There were plastic ducks and other children's things in the bathroom. There was children's play equipment in the garden. The garden itself was very well tended with a small vegetable patch for G to grow her own produce. When, a few days later, I accompanied the father and his mother and G, more toys were laid out on the floor ready to be played with. It was possible to see this in two ways, one could see it as the work of a devoted father whose daughter meant the world to him, and who wished to show his daughter that she was always welcome and had a stake in his home, and to do all possible to make her time with him as enjoyable for her as he could. On the other hand, the amount of things laid out for G, even when she wasn't there…gave a flavour of obsession. Even [his mother] has said he is "obsessed" with G.

34. Thus the father's view of himself, and the one that appears when he is relaxed and feels secure, and which probably is seen in his work, is of a friendly, sociable, caring person with strong values, able to respond flexibly to changing circumstances, and be reasonable and logical and want to sort things out with people amicably and reasonably. Under stress, and especially in relationships which stimulate his attachment system (with parent, spouse or child) he can show the swings of behaviour seen in ambivalently insecure people, from being demanding/aggressive to seeking sympathy/nurturance, he is trying to ensure that he is not ignored and invalidated, and then becomes hyper determined in that…

37. The danger to G in this is that when she gets older bigger and more assertive, and ignores her father's wishes, this will trigger the anger that really ought to be focussed on his parents (better, that really ought to be resolved) and trigger the aggressive, frightening, controlling behaviour that the mother has experienced and which was the main cause of her fleeing.

38. For G's sake therefore the father needs honestly to address these issues in psychotherapy, and not just counselling.

15. In the course of his oral evidence the father said that over a period totalling some eighteen months spread over the years 2008 to 2011 he underwent counselling. When I pointed out to him that Dr Richer had recommended that he needs psychotherapy the father said that he had spoken to his GP about psychotherapy but had been unable to locate a psychotherapist. His GP had offered counselling as an alternative. I am not satisfied that the father has ever made a serious attempt to identify a psychotherapist.

16. In February 2006 Dr Richer prepared an addendum report. In it, he notes again father's indulgent handling of G. He says that,

8. …It might be objected that father indulges because he sees her only briefly and he is not sensitive to her state because he does not know her well, for the same reason. But this ignores the quality and extremity of his indulgence. It also ignores what seems to be an obsession with G given all the toys etc. arranged around his house which I observed in 2004 and which the Guardian observed in 2005, when there were even more child related things arranged around. I understand that father has reduced this collection on display, that does not constitute evidence that he has reduced his obsession.'

17. Dr Richer was asked specifically to advise on the frequency of contact that would be beneficial for G. He suggested that contact take place two or three times a year and that it should be day long from 10.00am to 19.00pm.

18. Dr Richer came to the conclusion that G's attachment status is ambivalent insecure.

19. Dr Bryan Tully is a clinical psychologist. He was instructed to undertake a psychological assessment of the father. At the time he was instructed in 2004 he was an Honorary Lecturer in Forensic Psychology in the University of Birmingham. He saw the father in December 2004.

20. Dr Tully reports that when he saw the father he was exhibiting a degree of depressive mood. He says that

'This has undermined his ability to undertake the most demanding of operational police duties and his work as a police pursuit driver. Over the past couple of years he has paid a heavy emotional price for his struggle to obtain the contact he wants above all else.'

21. Dr Tully says that the father 'does not come near to meeting the standards for a full personality disorder'. He says,

'I would be inclined to go along with an Attachment formulation as Dr Richer seems to do. The father's adult Attachment Style, as psychologists call it, is somewhat pre-occupied. It is pre-occupied with certain attachment issues because of early life experience in which those matters were unrequited and unresolved…the father's dogged persistence may be a reflection of the only way he knows how to repair or heal his feeling of hurt by just battling on no matter how unhelpful that actually is. The father has improved himself and done well in those areas of life where effort is key and more effort gets you further still…However, as every first year psychology student learns, in many tasks, too much effort can be as counter productive as too little. In Attachment terms when the father comes to Court he is like a child himself asking again and again and again to have his needs met. That is classic attachment seeking behaviour. Pester power does sometimes work in the home but even there it may be the cause of a certain expression of displeasure leading to stress.'

22. I noted earlier that Dr Richer recommended that the father undertake psychotherapy. Dr Tully is of the opinion that the father 'is unlikely to make major psychological changes' He says that,

'If the father can find a therapist with an interest in attachment and contact issues then that could be very helpful. However pre-occupied clients are a challenge because they aren't too happy when someone tries to interrupt the mental pre-occupation which is causing all the trouble. For all these reasons, for the time being I would suggest that third parties involved in contact should be neutral non relatives as far as possible'

Previous judgments
23. Several judges have been involved in this case over the course of the last 13 years. The involvement of three of those judges has been significant. Although the hearing bundle does not contain all of their judgments those that are included paint a consistent picture.

24. The first in time is the judgment of His Honour Judge Victor Hall dated 8 October 2002. Judge Hall was the Designated Family Judge for Leicester. He acknowledged that the mother and the father "are both loving and good parents of their daughter". He had positive comments to make about the father's contact with G:

'Contact has been going well; of that I have no doubt. Notwithstanding the poor relationship between the adults, father is devoted to G and has done very well by her, by all accounts. I heard this morning from the Cafcass officer who has been asked by the court to look at the question of contact and to observe some overnight contact. The original Cafcass officer that I heard in August of this year was in favour of staying contact. I am satisfied that staying contact has gone well.'

25. Albeit that his encouragement was wrapped in very clear warnings to the father, Judge Hall was also encouraging and optimistic about the way contact might progress:

'So far as the future is concerned, the father must realise this…: if he wishes to progress further in his contact with G…the next four months is a testing time for him both in relation to the way in which he looks after G, the way G settles and – it has to be said very firmly in this case – the way he behaves towards G's mother. I will be looking at that very carefully when the matter comes back. The court would wish for the matter to advance towards longer periods of contact: staying contact, holiday contact, matters of that nature. I am not going to look at any of those matters today because I think the next four months is going to be a testing timer. Behaviour modification is required; everything must be allowed to settle down; over-intrusion must stop and G's general best interests must be advanced.'

26. The warnings to the father arose as a result of Judge Hall's assessment of the father set out earlier in his judgment. He said,

'As adults interacting with each other I find the father to have been controlling, inflexible and rigid with his dealings with the lady who was then his wife, concentrating on what he perceives to be his rights in relation to the part that he should play in the upbringing of his daughter with little realisation for the duties that he has. I accept that in the relationship he has been unyielding, autocratic and authoritarian, overbearing and at times domineering and on occasions has resorted to unacceptable behaviour. Examples of this are fairly legion within this case. Perhaps one that stands out is the videoing the handovers; no fewer than 20 handovers were videoed by him and when he showed the results of his artistic efforts to the Cafcass officer she told me that the effect that he wanted her to get was quite the opposite and that in fact there was little that could be said against the mother's 'conduct.'

27. The father's position at the time of that hearing was that he sought a shared residence order. Judge Hall noted that 'as far as father is concerned nothing short of shared care will do'. Judge Hall was clear that a shared care arrangement was not appropriate. He said,

'In my view shared residence is not appropriate here; nothing like it is appropriate. The level of animosity between these parents is not conducive to the interests of the child…In large measure I find that animosity has been fuelled by father's approach to the mother: his attempts to dominate, his inflexibility and inability to allow the mother to parent without him knowing everything that is going on. It is simply not conducive to a shared residence order working. His emphasis on his rights as opposed to his duties as a father is a similar factor that puts me off thinking that shared residence is appropriate. Joint residence would, I am sure, do nothing to ameliorate the tensions between these parties but would have within it the very real prospect that the order would be used by the father to increase further his intrusions into the mother's life, heightening the tension, fuelling animosity and at the end of the day G would be the loser. I am quite satisfied, having seen the parties, that her best interests would not be advanced.'

28. Judge Hall was appointed Director of Studies for the Judicial Studies Board. The case had to go to another judge. In March 2004 His Honour Judge Mayor QC transferred the case to the High Court. That same month the application came before Mr Justice Kirkwood. It is sufficient to refer to the opening paragraph of his judgment. He said,

'This is an exceptionally tragic case about contact between G, who is going to be four next month, April 22nd, and her father, a serving police officer. I have no doubt that the father is emotionally devoted to his daughter and is capable of being good with her. But contact has reached a point at which it is easy to foresee breakdown. G's parents separated before her birth. Within three months of her birth came the first application for defined contact. That was in July 2000, and the litigation has been unrelenting ever since. I am told that…there have been twenty five applications coming before the Court. That is wholly unsatisfactory because it does no good whatever to either of the parents or to the child and it has got to stop.'

29. Although the father was hoping that contact would be increased, those hopes were not realised. The judge took the view that there needed to be a psychological assessment of the father before any consideration could be given to increasing contact. He released the case to His Honour Judge Brunning, Judge Hall's successor as Designated Family Judge for Leicester.

30. The third judgment to which I must refer is Judge Brunning's judgment of 26 July 2004. He stated in terms that his assessment of father mirrored the assessments arrived at by Judge Hall and Mr Justice Kirkwood. He said,

5. Mr Justice Kirkwood said, and I agree respectfully with his words, that he had no doubt that the father is emotionally devoted to his daughter and is capable of being good with her. But, and there are very large 'buts', there are many aspects of the father's personality which, contrary to his wishes and desires, are having the opposite impact to that which he would like them to have. The many good qualities he possesses are being masked by his obsessions.

6. I record, for example, that he served his country, in one of its most prestigious regiments, in an exemplary fashion for 12 years. As a serving policeman, he has earned the praise and respect of senior officers. But, as Judge Hall, Mr Justice Kirkwood and I have observed, he has become obsessed by his pursuit of contact with G. He seems incapable, in this sphere at any rate, of understanding, let alone seeing, that his pursuit of that obsession blinds him to the needs, views and judgment of others. His personality seems such that he pursues matters with an unflinching determination to get his way.

7. This is an admirable quality in many respects. But in this court, it is one which causes the impression to be quickly given that he is an inexhaustible bulldozer determined to push aside any obstacle in his path, whether it [is] justifiably there or not, instead of someone able to react to contrary views or judgments or thoughts in a reflective way. He seems unable to appreciate that others have points and opinions which ought to be taken seriously. If he is thwarted, he seeks to browbeat and, by sheer remorseless persistence, drive any opposition out of the way.

8. The result, tragically, is that this court now has to consider whether or not contact can continue at all or whether, if it does continue, it must be reduced even more.

The order of 14 March 2006
31. That is the background to the order made on 14 March 2006 which the father now seeks to vary. That order is notable not only for the fact that it is long, detailed and highly restrictive but also for the fact that it was made by consent.

32. The order provides that the father should have direct contact with G three times a year on the Saturday preceding G's birthday, the first Saturday in September and on 28th December. Transportation to and from an agreed handover point should continue to be undertaken by the X Agency at the father's expense. The father gave an undertaking not to go within four miles of the mother's home.

33. In addition to direct contact the order also provides for the father to have indirect contact, by card, once a month in those months when no direct contact is to take place together with a card and present for Christmas, G's birthday and Easter. The order also confirms the father's entitlement to receive annual school reports, proofs of school photographs (with permission to purchase copies) and to be informed of the dates of school terms and school holidays.

34. The order includes a prohibited steps order setting out seven steps the father may not take. These include contacting G's school, contacting anyone connected with the church which the mother and G attend, contacting any GP or other doctor treating G, initiating telephone contact with G and having discussions with G about extensions to the contact arrangements.

35. The order ends with a provision under s.91(14) Children Act 1989 preventing the father from making any further applications for orders under s.8 of that Act without the leave of the court. That order was to remain in force for a period of six years until 30 April 2012.

36. The father seeks to persuade me that Judge Brunning indicated that at the expiration of the s.91(14) order the arrangements for contact should be reviewed. I do not accept his evidence on that point. In my experience it would be highly unusual for a judge to make a s.91(14) order and at the same time encourage the parent against whom that order is made to apply for a review immediately the order came to an end.

37. Over the course of the next six years the father made two applications for permission to apply to vary the contact order. The first application led to an order in 2009, consented to by the mother, addressing two specific issues in respect of school photographs and the provision of a copy of a DVD of G's performance in the school nativity. The second was an application by the father for permission to take G to a horseshow in June 2010. Although there is no transcript of her judgment I am told that Judge Hampton found that the father had coaxed G into saying that she wanted to attend this horseshow. The father's application was dismissed and he was ordered to pay the mother's costs.

The recent litigation history
38. The s.91(14) order expired on 30 April 2012. The very next day the father wrote to the mother asking her agreement to contact being extended. His proposals included an immediate increase to two Saturdays a month for two months, to be followed by significant additional contact during the 2012 summer school holidays including staying contact. The gulf between the parents was unbridgeable. The father issued this application on 28 June 2012. Given the history of this case it is not surprising that on 26 July 2012 Judge Lea should have ordered the preparation of a s.7 report by CAFCASS. What is perhaps more surprising is that that order went on to direct that 'For the purpose of preparing this report Cafcass Coventry is specifically asked NOT to speak direct to the child.' The reason for that restriction is not entirely clear.

39. The s.7 report was prepared by Nina Farrimond. Though she acknowledges the findings previously made by the court she appears to minimise their significance. She says,

'I do not doubt that the father has been intimidating and childlike in his behaviours as felt by professionals such as hospital and nursery staff that have been involved with G in the past, but he has not harmed G and she does not appear to have suffered or been put at risk during contact over the past six years.'

40. Ms Farrimond does, though, accept that she has been handicapped by not being allowed to ascertain G's own wishes and feelings. She says,

'it is my professional opinion that the Court woud have benefitted hearing from G, although I fully appreciate The mother's concerns as to why she feels this would not be a good idea.'

41. Handicapped as she undoubtedly was by lack of access to G, Ms Farrimond recommended that contact should be increased to one full day a month, that the X Agency should continue to facilitate handovers in the interim (though she does not say what 'interim' means in this context) and that G should be allowed to text or call her father on her mobile phone at agreed times.

42. When I inherited the mantle of Designated Family Judge for Leicester in September 2013, it fell to me to take over responsibility for the conduct of the father's present application. On 2 November I made G a party to the proceedings and pursuant to rule 16.4 Family Procedure Rules invited the National Youth Advocacy Service ('NYAS') to accept appointment as Children's Guardian, an invitation which was accepted.

The father
43. The father's position is that not only does he wants to see G more frequently but that he is confident that that is what G wants too. In his first statement, written in August 2012, he says that,

'9) My long term ideal is that the level, duration and type of contact that G has with me is 'normalised' to become contact on alternate weekends and for a share of all school holidays. I wish to state clearly that this is something that will be built up to and it is not my intention that this would be introduced immediately. Such a pattern would of course include overnight stays, with me collecting G from school on a Friday afternoon and returning her to school on Monday mornings.'

It was clear from the father's oral evidence that, in essence, this remains his aspiration.

44. The message G has given to the NYAS caseworker does not correspond with the message the father says she has given to him. The father expresses the opinion,

'that G's view is constrained by not being allowed significant and normal contact with me (her father) for many years. I also have some concerns about the fact that she is closely aligned with her mother who she understandably seeks to please and may not therefore have the "emotional permission" to enjoy contact.'

He later says that he believes it to be possible

'that G has limited her own expectations or hopes (or at least those she expresses to professionals) to simply be those that she feels her mother may accept…[This] degree of enmeshment in the relationship between G and her mother is what is possibly behind G saying one thing to me and then another to her Mother. It may be that the mother's fears and fantasies of me, and her antipathy towards me are consciously and unconsciously being transmitted to G…'

In his oral evidence he said that the phrase, "I know Mum wouldn't like it" is a frequent refrain he hears from G whenever he sees her. His view is that 'G has been parroting' her mother.

45. Earlier judgments note the father's tendency to criticise professionals who do not agree with him. He is critical of the NYAS caseworker. He describes his reports as 'detailed but inadequate in terms of analysis'. He gives the following example; he says that the caseworker,

'repeatedly refers to arrangements to collect and return G and says that there are no obvious solutions. For example in paragraph 4.9 of his May 2013 report he says: "It would not be in G's best interest if the father was to collect her from and return her home" but he doesn't say why. However, the truth is that prior to the making of the final order I did exactly that, for many years. I returned G directly to the mother's home without any problem, before the involvement of the contact centre.'

46. That is an unfortunate choice of illustration since it could equally be reflective of a lack of insight into the criticisms of him made in the earlier proceedings. Also telling was the following exchange during cross-examination of the father by Mrs Hayter for the mother:

Q: Are you willing to undertake not to go to [the mother's] house if she doesn't want you to?

A: If the court considers it appropriate then I will do so. At this point in time the answer is 'no'.

47. Throughout the course of this present litigation, save for this hearing, the father has been a litigant in person. On 17 August he filed his final position statement. Having set out his aspirations for contact he ends by saying,

'It is clear from the NYAS report that there has never been and there are no welfare concerns whatsoever in respect of the care of G afforded by me and the relationship between myself and G. I have carefully considered the NYAS report, G's wishes and what she has expressed to me over the last few years. I feel that the contact I have proposed meets the vast majority of G's wishes and feelings and they provide her with the opportunity to undertake the activities she has specifically identified. The proposals do not interfere with her family life and provide a foundation for her relationship with me now and into our future. I understand that G (sic) is on the brink of adolescence and so will with her mother rightfully be taking something of a secondary role to her friends and her academic life in the next few years, to the extent that we may well assume the role of taxi drivers for G and her friends.'

48. In his oral evidence the father explained how he envisaged contact progressing. He looks for an immediate increase in contact to six times a year until G's birthday next April. He then looks for contact to increase to at least monthly, with perhaps some of those monthly contacts to be overnight. There should be a framework set by the court which provides a minimum frequency coupled with an indication to G that she may have more contact than that minimum if she wishes.

49. The father acknowledges that G has told the NYAS caseworker that she only wants contact to be increased to six times a year but in his opinion that does not meet her needs. When challenged that his proposals for contact represent his own wishes and desires and not G's, insisted that that is not the case.

50. The father is clear that he does not consider it appropriate for the prohibited steps orders made in March 2006 to continue any longer. They are, variously, unnecessary, unreasonable and too extensive. When it was pointed out to him that he had consented to the making of those orders his response was that he had only consented to the March 2006 orders 'just to progress matters'. It seems clear that he was motivated by a concern that the court may suspend all contact though I am doubtful that he understood why that was a possibility.

The mother
51. The mother's position is that the father has not changed at all since the final hearing before Judge Brunning seven years ago. She accuses him of manipulating G and of harassing her.

52. The mother speaks of having 'tried to shield G from the previous proceedings, and the previous behaviour of her father'. In her first position statement in August 2012 she said that the result of this is that G,

'has a very idealistic view of her father. When G has asked why contact is how it is, i.e. 3 visits a year, with Gill Brown assisting with the collections, I have said there are grown up reasons which she is too young to understand yet. I do not wish to involve G in these proceedings, as she does not fully know the background of the matter. If she was interviewed by CAFCASS, I do not think she would be able to give an accurate reflection of what contact she actually wishes as she does not know what kind of person he is.'

53. The mother goes on to acknowledge that 'G has indicated she would like to see more of her father' but goes on to say,

'However, she is unaware of the reasons why contact is so limited and is therefore not in a position to make an informed decision. I believe that G's desire to see more of her father arises because the controlled access has been successful and the visits from G's perspective have been enjoyable…Whilst she would say she wishes to see her dad more, she does not say this knowing all of the facts and if she did I do question whether she would want to see her dad more or even at all.'

54. The mother continues to emphasise the impact on her of the father's past behaviour and of six years of continuous litigation. In her final statement she says,

'[The father's] persistence is ongoing and relentless. It is completely exhausting. This is why the current Order of 2006 has such a rigid framework. The Guardian comments in paragraph 3.40 "I have never before seen such a tightly controlled package of 'only this' and 'cannots'". This Order was felt by the Court as being necessary. It was made after 45 hearings. It was not made lightly but I am very grateful to the Court that it has enabled G to enjoy stability whilst also having opportunity to develop her relationship with her father in relative safety.'

55. It is these concerns which, the mother says, are the foundation of her opposition to the extensive contact which the father now seeks. She says,

'I am currently opposed to extending contact to overnights as I believe the longer periods of time G spends in her father's company the more vulnerable she is to his manipulative and controlling behaviour…I know that a father/daughter relationship is different to a husband/wife relationship but [the father] tries to bully and control everyone who doesn't agree with him, or do what he thinks they should.'

56. Though opposed to the level of contact sought by the father, the mother does accept that contact needs to move forward. She acknowledged that contact goes well. She agrees that G herself is asking for more contact. Although G is at present only asking to see her father six times a year she said that if G were to say that she wanted more than that, and even if she said she wanted overnight contact, then she would support her. She agreed that G would like to exchange occasional text messages with her father. She accepts that some telephone contact may be appropriate, perhaps using a designated mobile phone for that purpose. She agreed that given G's age the window of opportunity to progress contact is limited.

57. However, the mother expresses a deeply held concern that as she gets older and more assertive there is a risk that the father may treat G in the same way that he has treated her:

'G does have a mind of her own and can make her own decisions. So did I during my marriage, yet I became a "doormat", unable to stand up to [the father], and always strived to please him. I walked on egg shells, never knowing when or why or what I did would upset him. I was an adult. G is thirteen and has been brought up to respect her parents. I do not believe she would intentionally go against her father, nor want to disappoint him. This makes her even more vulnerable to his manipulation.'

The more extensive the contact, and in particular if the court permits contact by phone, text, e-mail or a social networking site, there is a real risk that the father will browbeat G and use emotional pressure to coerce her into agreeing to more and more contact. The mother detects no sign of any change in the father since the earlier proceedings.

58. The mother's concern raises an interesting question as to the extent to which G may be able to recognise and deal with such behaviour by her father. The mother accepts that as she has grown older G has become more confident and assertive. However, G knows very little about the background history which led to contact being fixed at such a low level. It is clear that the mother has deliberately shielded her from that history. If G is to understand the risks which the mother fears may arise as a result of an increase in contact then she needs to have at least some insight into that history. Although the mother appeared to accept that point it was clear that she remains reluctant to undertake what might loosely be called 'life story work' with G.

The NYAS caseworker

59. NYAS appointed Paul Pennington-Wilson as caseworker. Since his appointment he has met with G eleven times. He has seen her at her mother's home. At his request two additional contacts have taken place during the present calendar year in order to enable him to observe G with her father. He has spent time with G on her own, sometimes going with her to walk her dog. He has prepared three written reports. He has also given oral evidence. He has undertaken a very thorough piece of work.

60. Mr Pennington-Wilson cannot recall having dealt with any other case in which the court has regulated contact as tightly as in this case. He makes the observation that 'What is undeniable is that G is no longer the almost six year old, for whom this protective web was fashioned'. He goes on to make the point that,

'G has enjoyed a stable family life, over the past seven years, in which she has thrived in placement with her mother, but also been able to maintain a significant and positive relationship with her father, This has been at the price of having a somewhat limited and constrained framework, which was designed for a six year old. G recognises that this needs to change. The manner of change, and the form of any new contact schedule, should reflect G's present, and set her up for making her own decisions in future.'

61. Mr Pennington-Wilson's observations of G's contact with her father have been very positive.  He says that his observations 'coupled with the information obtained from the X Agency, indicates that they have a very good relationship, that G loves her Dad very much and that she enjoys seeing him'.

62. G told Mr Pennington-Wilson that she would like to see her father more often, in a more flexible manner. However, at no time has G ever suggested to him that she wishes to have the kind of extensive contact proposed by the father. In his second report Mr Pennington-Wilson says that G had told him,

'3.5) …that it might be nice for Dad to send her the odd text message, but that this was as far as she wanted this to go.
She went on to tell me that she would like to change the contact so that she sees her father six times per year…When discussing flexibility, G told me that this would also mean that, on days when they needed to travel to, for example the Burghley Horse Trials, it could start earlier and finish later.

3.6) I asked G if she would envisage staying overnight with her father. She replied that she would not wish to do this, preferring "day activities" after which she could return home…

3.7) When I asked G what things she would want to know about, regarding the previous proceedings, she said that she did not really feel that it was necessary to do this and that, instead she would prefer to look at the future…

3.9) We again talked about telephone contact. G said that she did not think that this would be necessary if she was going to see more of Dad, also that she would no longer wish to write to him in between the visits…'

63. In his third and final report, Mr Pennington-Wilson confirms that G's position remains unchanged. She is happy for an increase in contact to six times a year. She is not ready for overnight contact. He reports that G,

'said [she would] be upset if she was made to stay overnight at her father's home, before she felt ready for this…When I asked her about staying with Dad every other week-end, G said that this would be the worst option as it would be a "massive change".'

64. Given the findings previously made concerning this father, a key issue in determining this present application is to assess the extent to which the father has changed and moved on since the earlier litigation. In the light of his dealings with the father, Mr Pennington-Wilson states that

'notwithstanding that G's needs have changed, there is little to show that the father is likely to be less persistent in seeking his desired outcome…G has changed in the seven years in which that order was made, but there is no evidence to indicate that The father has done so…he does not acknowledge his role in how things got to where they are today, or that it is not his needs which the court must regard as paramount but those of G.'

65. By way of illustration of this point, Mr Pennington-Wilson notes that when he asked G whether she had felt pressured in any way by her father she replied that it had not been pressure, as such,

'but that she had felt it difficult to say "no"…Upon return from contact on 14/07/2013, she blithely announced that she and her father had agreed an extension of time for the September contact. Later, in discussion with me about this, G admitted that much of the idea had come from Dad.'

66. It is consistent with those observations to note that the father made it clear to Mr Pennington-Wilson, as he also did in his oral evidence, that he believes that G's views cannot be given significant credence as they 'parrot those of her mother'.  Mr Pennington-Wilson said that he can 'find no evidence that G has been overtly influenced by her mother in expressing such views to me'.

67. An important issue in this present application is to consider the father's insight into, and acceptance of, the findings made in the earlier proceedings. Mr Pennington-Wilson has a clear view on this issue. He says that

'Much of the concern about his past behaviours centred around seeking to manipulate G…and his continued attempts to achieve his aims despite evidence from professional assessments and judicial findings that he was going about this in a manner which was potentially damaging to both G and her mother.

From my interviews with him in these proceedings I was concerned that he showed little insight into his responsibility for the problems which this had created, or the need for the stringent controls set up in the order of 14/03/2006…

'The father told me he did not agree either with the judgements or with the details of the order both of which he said, had been made on the basis of guardian's opinions being interpreted as fact and judges making wrong judgements on that basis. Such lack of insight should be seen by the court as somewhat alarming, when considering the balance of risks and benefits in changing G's contact arrangements.'

68. The order of 14 March 2006 prohibits the father from 'contacting any school now or likely to be attended in the future by G'. The father very much wishes to see that prohibition removed. The mother is strongly opposed to this. She refers to times in the past when the father is said to have reduced G's teachers to tears. G herself has appeared somewhat ambivalent. In his second report Mr Pennington-Wilson notes that,

'When I asked G about Dad going into her school to talk to teachers, she said that her mother would not like this, though when I asked her how she would feel about this she answered that she did not know…'

69. In his final report Mr Pennington-Wilson says that his,

'efforts to enable The father to play a greater part in G's education has fallen upon barren ground. Any attendance by him at parents' evening would be, in the context of the relationship between the parents, likely to expose G to tensions which she does not need on such an occasion so, sadly, I could not support this. Furthermore the school have told me that, while they are willing to meet with him on two occasions per year, this would not reveal any information which was not contained in the school reports, copies of which he already receives…'

70. In his oral evidence Mr Pennington-Wilson stood by his written reports. He expressed concern about the father's lack of any real insight into why the order of 14 March 2006 was made. In his opinion the risk of manipulation and controlling is still there. He is concerned that the father is not fully aware that this behaviour puts G at risk. Although he acknowledges that G does want to see her father more he agrees that some protective measures are still needed. He is also of the view that there should be an order under s.91(14) to remain in place until G' sixteenth birthday.

The law
71. The relevant law is to be found in s.1 of the Children Act 1989. Section 1(1) provides that when a court determines a question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration. In determining what is in the child's best welfare interests the court must have regard in particular to the factors set out in the 'welfare checklist' in s.1(3). Section 1(2) requires the court to have regard to the general principle that any delay in determining a question concerning the upbringing of a child is likely to prejudice the welfare of the child. Section 1(5) provides that the court should only make an order if it considers that doing so would be better for the child than making no order at all.

72. In addition to those statutory provisions the court must also have regard to the Article 8 rights of both parents and of G and must endeavour to arrive at an outcome that is both proportionate and in G's best interests.

73. In a case such as this in which there is real concern about the father's understanding of the approach the court is required to take, it is appropriate to underline the point made by Baroness Hale in In re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43:

'[30] My Lords, the [Children Act 1989] brought together the Government's proposals in relation to child care law and the Law Commission's recommendations in relation to the private law. In its Working Paper No 96, Family Law: Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Law Commission said:

'We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.'

Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained in J v C [1970] AC 668, 711, this means that it 'rules upon or determines the course to be followed'. There is no question of a parental right.'

74. In assessing where a child's best welfare interests lie the court must take into account each of the factors set out in the welfare checklist in s.1(3). It is not by chance that the first factor set out in that list is the child's wishes and feelings. In his final position statement for this hearing, prepared at a time when he was still a litigant in person, the father refers to my decision in Re S (Transfer of Residence) [2010] EWHC 192 (Fam)  [2010] 1 FLR 1785, a high conflict case concerning an 11 year old boy, and in particular to the approach I took to assessing S's wishes and feelings (see paragraphs 69 and 70).

75. Since counsel filed their written closing submissions in this case the Court of Appeal has handed down judgment in Re A (A child) [2013] EWCA Civ 1104. There are similarities between the facts of that case and those of Re S (Transfer of Residence), not least that both cases are examples of high conflict parental disputes in which litigation has gone on for several years; in both cases the resident parent (the mother) was implacably hostile to contact taking place; in both cases achieving compliance with court orders proved a considerable challenge; and in both cases the children concerned had become alienated from their non-resident parent creating a problem for the court in undertaking a reliable assessment of the child's wishes and feelings. Four points made in Re A are relevant to the case before me.

76. Giving the leading judgment, McFarlane LJ sets out, firstly, some general points concerning the task of the judge in determining where the child's best welfare interests lie:

'44. The determination of the order which best meets the court's duty to afford paramount consideration to the child's welfare is an exercise of judgment…In [Re B (A child) [2013] UKSC 33] all five SCJ's agreed that the task of a trial judge making the ultimate determination of whether to make a care order was "more than to exercise a discretion" (Lord Wilson SCJ, paragraph 45). For the reasons I have given, I would include a 'no contact' order in private law cases in the same bracket. In such cases, the Supreme Court held that the trial judge's task is to comply with an obligation under HRA 1998, s 6(1) not to determine the application in a way which is incompatible with the Art 8 rights that are engaged.'

Although McFarlane LJ refers expressly to a 'no contact' order, it seems to me that the same point applies to residence and contact orders.

77. Secondly, addressing the problem of evaluating and determining the weight to be attached to the wishes and feelings of an alienated child, McFarlane J said,

'68. If the judge's appraisal of the weight that can, and should, be attributed to M's wishes and feelings is soundly based, then it must follow that his conclusion on the merits of the welfare decision could not be categorised as 'wrong'. Such a decision would fall to be seen alongside, by way of example, those in the cases of Re J (A Minor) (Contact) [1994] 1 FLR 729 and Kopf and Liberda v Austria (Application No 1598/06) [2012] 1 FLR 1199 cited above. The evaluation of the weight to be given to the expressed wishes and feelings of a teenage child in situations where the parent with care is intractably hostile to contact is obviously not a straightforward matter, no matter how consistently or firmly those wishes are expressed. In this context the decision of HHJ Bellamy in Re S (Transfer of Residence) [2010] EWHC 192 (Fam); [2010] 1 FLR 1785 provides a good illustration.'

78. Thirdly, addressing the issue of the relevance of findings made in the past when making decisions about the future, McFarlane LJ said,

'74. The judge's focus [in this case] is very much upon the here and now. It is plainly right for judges to make their evaluation of a child's welfare based upon the current situation, but in analysing that situation they must bring to bear such evidence that may be relevant from what has transpired in the past.'

79. Fourthly, as to the responsibility of the court not only to make but also to uphold orders regulating the exercise of parental responsibility towards children after separation, McFarlane LJ said,

'53. The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court's powers, which is likely to be effective as opposed to ineffective…

60. The need for the single judge who has charge of the case to establish a 'set strategy for the case' and to stick consistently to that strategy, so that all parties and the judge know what is happening and what the court plainly expects will happen, cannot be understated. If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then, as part of a consistent strategy, the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in CA 1989, ss 11J-11N or by contempt proceedings. To do otherwise would be to abandon the strategy for the case with the risk that a situation similar to that which has occurred in the present case may develop; to do otherwise is also inconsistent with the rule of law.'

80. The issue of enforcement is problematic in high conflict cases particularly in those involving children who are old enough not only to express their wishes and feelings but to vote with their feet in order to try to ensure that their wishes and feelings prevail. The difficulties are well illustrated by the authorities – see, for example, the three judgments of Wall J (as he then was) in Re M (Intractable Contact Dispute: Interim Care Orders) [2003] EWHC 1024 (Fam); [2003] 2 FLR 636, Re O (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam); [2004] 1 FLR 1258 and A v A (Shared Residence) [2004] EWHC 142 (Fam); [2004] 1 FLR 1195, the decision of Munby J (as he then was) in Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam); [2004] 1 FLR 1226) and my decision in Re S (Transfer of Residence), to which I referred earlier, together with its sequels Re S (A Child) [2010] EWCA Civ 219, Re S (A Child) [2010] EWHC B2 (Fam), Re S (A Child) [2010] EWCA Civ 325 and Re S (Transfer of Residence) [2011] 1 FLR 1789.

81. The problem of enforcing orders made in high conflict cases arose acutely in Re L-W (Enforcement and Committal: Contact) [2010] EWCA Civ 1253; [2011] 1 FLR 1095. Munby LJ (as he then was) acknowledged the challenge facing the court. He noted that 'there are various…techniques to which recourse may be had' (para 107) and went on to acknowledge that 'which form of order (if any) is appropriate in a particular case must of course depend upon the inevitably unique circumstances of the individual case.' (para 108). What is particularly notable, however, is his cri de couer shared, I have no doubt, by most family judges, that

'101. It is one thing to postulate…that no court should threaten coercive action unless it is prepared to see it through. It is another to find that the process has reached an unanticipated crisis in which coercive action may actually undermine the objective. Both are unavoidable aspects of the deployment of judicial procedures to try to resolve differences and arguments which are centrally to do with human relations and only marginally to do with law.'

Discussion
82. I begin my assessment by turning to the welfare checklist. Section 1(3)(a) requires the court to take account of G's ascertainable wishes and feelings (considered in the light of her age and understanding).

83. The concept of 'understanding' should be construed broadly. It encompasses, for example, an assessment of whether the child's views are rational (when judged against any findings the court may have made in respect of parental behaviour), congruent (when judged against what is known about the child's overall presentation and functioning) and genuine (when judged against any findings the court may have made concerning factors such as enmeshment, alienation and the emotional ties of loyalty the child may have to the resident parent).

84. As a general principle, the older the child the greater the weight the court is likely to place on that child's wishes and feelings though the factors which the court takes into consideration in assessing 'understanding' are likely also to be relevant in determining the weight to be accorded to them. Whilst the court must respect a child's wishes and feelings it is not bound to follow them even if satisfied that they are rational, congruent and genuine.

85. G is now 13 years old. She is, therefore, at an age when the court is likely to place significant weight on her expressed wishes and feelings. She is an intelligent and articulate young lady. Mr Pennington-Wilson has met with her on eleven occasions during the course of which she has been consistent in her views on two key issues: that she wants contact to be increased to six times a year and that she does not want overnight contact.

86. In high conflict cases, where a child expresses clear opposition to contact or to an extension of conflict it is invariably alleged by the non-resident parent that the child's views are the result of the undue influence, conscious or unconscious, of the resident parent. In some cases, that allegation is well-founded (Re L-W (Enforcement and Committal: Contact), Re A (A Child) and Re S (Transfer of Residence are examples of such cases). In this case the father has talked about 'enmeshment', 'alienation', loyalty to her mother and of G simply 'parroting' the views of her mother. Mr Pennington-Wilson does not agree. Neither do I. I am satisfied that the wishes and feelings which G has consistently expressed to Mr Pennington-Wilson are rational, congruent and genuine.

87. Section 1(3)(b) requires the court to take account of G's physical, emotional and educational needs.

88. G's physical and educational needs are the same as those of any child of her age. The fact that Dr Richer concluded in 2004 that G's attachment status was ambivalent insecure suggests that up to that time her emotional needs had not been fully met. There is no up to date evidence of her current attachment status. However, I am in no doubt that G's emotional welfare requires that she be protected against the kind of behaviour previously exhibited by the father which was so roundly criticised in the earlier judgments to which I have referred.

89. Section 1(3)(c) requires the court to take account of the likely effect on G of any change in her circumstances.

90. The likely effect upon G of any change in the contact arrangements which have been in place since 2006 will depend upon the extent of those changes. I do not anticipate any significant effect on G if the new order sets contact at the level she herself has proposed. However, if I go further than that, and in particular if I permit overnight contact, then she is likely to be distressed and may feel that she the court has not listened to her. The further I depart from the level of contact she has asked for the greater the risk of distress and the greater her distress is likely to be.

91. Section 1(3)(d) requires the court to take account of G's age, sex, background and any characteristics of hers which the court considers relevant.

92. I have set out the background history in significant detail. That history is an important part of G's life story and therefore relevant to the decisions I have to make. Also relevant are her age and sex. G is at an age when she is moving from dependence to independence, from accepting the need to comply with the directions of her parents to questioning and challenging those directions and testing boundaries. In this case that factor assumes greater importance than in many other cases when one bears in mind Dr Richer's concern that there is 'danger to G…[that] when she gets older bigger and more assertive, and ignores her father's wishes, this will…trigger the aggressive, frightening controlling behaviour that [her mother] has experienced…'

93. Section 1(3)(e) requires the court to take account of any harm which G has suffered or is at risk of suffering.

94. It is clear from the reports prepared by G's previous guardian, Brenda Phillips, and from Dr Richer's assessment of G's attachment status as ambivalent insecure, that in the early years of her life the conflict between her parents had a harmful impact on her. It is equally clear from the three judgments to which I have referred that the primary cause of that conflict was the father's behaviour. I am in no doubt that if there were any repetition of that behaviour there is a real risk that that would cause G emotional harm.

95. Section 1(3)(f) requires the court to consider how capable each of G's parents is of meeting her needs.

96. I am in no doubt that both parents are capable of meeting G's physical needs. The issue in this case relates to their capacity to meet her emotional needs.

97. As I noted earlier, I have some concern that in recent years the mother may have over-protected G. In particular I have noted her failure to help G come to an understanding of how and why contact with her father is as it is. She has tried to wrap G in cotton wool. Although in the circumstances of this case that may be understandable and well-intentioned it is nonetheless the case that an important part of being a parent is the ability to help a child to move towards independence and to equip them to make their own informed decisions.

98. I am much more doubtful about the father's ability to meet G's emotional needs. As he gave his evidence I was struck more by what he did not say than by what he did say. I did not sense that the father has any insight into the reasons for or the reasonableness of the criticisms made of him in the earlier litigation. Although he has undertaken some counselling, I did not get a sense of any real change. I do not for one moment doubt the sincerity and strength of the father's love for G. From a human perspective, his wish to play a bigger part in her life – and to give her the opportunity to play a bigger part in his – is entirely understandable. However, it is clear that he still has great difficulty in separating his wishes from G's wishes and his needs from G's needs. He still has a marked tendency to assume a convergence between his wishes and feelings and G's wishes and feelings. In her closing submissions on behalf of the father, Miss Williams submits that the father 'has clearly learnt from the past and has come to acknowledge his part in the previous litigation'. I do not accept that to be the case. I am not convinced that the father can be relied upon to meet all of G's emotional needs.

99. There is a wide gulf between the contact sought by the father and the increased but limited contact sought by G. I am in no doubt that the welfare checklist analysis does not support the extensive contact sought by the father. That still leaves open the question whether the new regime of contact should be confined to that requested by G.

100. In determining the answer to that last question it seems to me that there are a number of factors I should bear in mind. Firstly, that I should seek to make an order which will endure and will minimise the risk of any further recourse to the court. Secondly, that I should bear in mind that G's growing independence means that whatever order I make today it is likely increasingly to be the case that in the future she will take greater control of the arrangements for contact. Thirdly, that notwithstanding the second point I should seek to avoid a situation in which G feels responsible for making contact arrangements and thereby becomes vulnerable to pressure and manipulation by the father. Fourthly, that the twin objectives of empowerment and protection are equally important. Fifthly, that the order should be realistic. In high conflict cases involving older children, before making an order the court should consider, in light of what is known about the parents, the child and the family dynamics, whether there is a realistic possibility that the order contemplated is practical and workable and whether, in the event of non-compliance, there is a realistic possibility of it being successfully enforced.

Conclusion
101. As for direct contact, this will be based primarily around school holidays and will take place as follows: on the first Saturday of the February half-term school holiday, the first Saturday of the Easter school holiday (unless that is Easter Saturday in which case it shall be on the following Saturday), the Saturday before G's birthday (unless that falls during the Easter school holiday), the first Saturday of the Spring Bank half-term school holiday, the first Saturday of the summer school holiday, the Saturday coinciding with the annual Burghley Horse Trials, the first Saturday of the October half-term school holiday and on 28 December.

102. The mother explained that with respect to the forthcoming October half term school holiday there is a difficulty in that G is going on a hockey tour with her school from 19 to 23 October and on a riding holiday from 27 October to 2 November. The provision for contact during the October half-term school holiday will begin in 2014.

103. Contact shall, as at present, be from 9.00am until 6.30pm save for the Saturday of the Burghley Horse Trials when contact shall be from 8.00am until 9.00pm.

104. The parties are agreed that it is no longer necessary for the X Agency to be responsible for handovers. The father shall collect G from and return her to Coppice Close. This will necessitate a variation to the undertaking given by the father on 14 March 2006 not to go within four miles of the mother's address. If the father is unwilling to agree to give a new undertaking reflecting this change then the undertaking will be replaced by an order of the court.

105. Paragraph 5 of the order of 14 March 2006 provided that in the months when the father does not have direct contact with G he shall be permitted to send a card to G by post. He was also permitted to send cards and small presents at Christmas, Easter and on G's birthday. I see no reason why that order should not continue. There should be no expectation that G must respond. She is old enough to make her own mind up about whether she wishes to respond.

106. Paragraph 6 of the order of 14 March 2006, which makes provision for the father to receive annual school reports, proofs of school photographs (with permission to purchase copies) and details of school terms and holidays, shall continue.

107. In accordance with her offer to the court, the mother shall provide G with a mobile phone for use exclusively in connection with contact. The father shall not initiate telephone or text message contact with G. The only exception to that restriction is that if there is a need to cancel contact at short notice (within 48 hours) then he may text G to inform her.

108. In the event that G makes contact with the father by text message the father may respond by text but may not send more than 3 text messages to Gin the course of any 24 hour period. There shall be a similar provision in respect of contact by e-mail.

109. In the event that G should open an account with a social network provider the father shall not at any time or for any purpose use that account for communicating with her.

110. The prohibited steps orders set out at paragraphs 12(b), (c), (d), and (g) of the order dated 14 March 2013 shall be discharged. Paragraph 12(f) shall be amended to read 'suggesting or seeking to encourage or persuade G (whether during face to face contact or by text, e-mail or in any other way) that contact should be varied or increased'.

111. The mother seeks an order pursuant to s.91(14) Children Act 1989 to remain in force until G's 16th birthday. Mr Pennington-Wilson supports that request. The father strongly objects.

112. As I noted earlier, the father wrote to the mother the day after the last order under s.91(14) came to an end and issued these proceedings within 3 months of the expiry of that order. Without the imposition of an order under s.91(14) I assess the possibility of this father issuing a further application as being high.

113. These proceedings have been ongoing for 14 months. G was 12 years old when they began. She is now almost 13½ years old. She will soon begin her GCSE courses. I have no doubt that further litigation at a time when G is studying for public exams is a prospect that, for her sake, should be avoided.

114. Although until the final hearing the father conducted the litigation as a litigant in person with the assistance of a McKenzie friend, because of her anxiety about having to deal with the father (particularly in the court-room context) the mother has throughout been represented by solicitors. The uncertainty of outcome and the expense are both likely to have caused anxiety for the mother which, however, unintentionally, is likely to have been transmitted to G. Were there to be further litigation it is likely that the same would happen again.

115. In determining the mother's request I have in mind the guidelines set out by the Court of Appeal in Re P (Section (14) Guidelines)(Residence and Religious Heritage) [1999] 2 FLR 573. Orders under s.91(14) should be used sparingly. They constitute a significant interference with a parent's right to apply to the court for orders under s.8 Children Act 1989. Where circumstances exist which make the granting of such an order appropriate, the order made must be proportionate. In this case I am in no doubt that it is appropriate that I should make a new order under s.91(14). It is in my judgment proportionate for that order to remain in force until G's 16th birthday. The order will therefore be that the father shall not make any further application either for new orders under s.8 Children Act 1989 or for further variation of the order dated 14 March 2006 as amended by me today without the permission of the Court. That order will remain in force until 22 April 2016. Any application for permission shall be reserved to me.