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H (A Child) [2014] EWCA Civ 271

A maternal Grandmother appealed within private law proceedings against an order that there be no direct contact with her grandchild who lived with the mother.

The grandmother represented herself. The mother did not appear nor was she represented at the appeal.

The grandmother appealed on the grounds that:

1) HHJ Moir had failed to consider or follow the order of Holman J which had put in place direct contact;

2) Holman J's order that there be judicial continuity had not been adhered to so that the judge's strategy had not been carried through;

3) The grandmother had not had an opportunity to give evidence at the hearing before HHJ Moir, although the child's Guardian had been invited to do so;

4) HHJ Moir based her decision on insufficient documents; and

5) HHJ Moir had provided insufficient instruction in relation to indirect contact.

The Court of Appeal refused the appeal for the following reasons:

1) Holman's J direction that there be judicial continuity should have been complied with by Her Majesty's Courts and Tribunals Service. However, Holman J's strategy was achieved as the Guardian demonstrated to HHJ Moir genuine and repeated efforts despite his professional opinion, to effect Holman J's contact order.

2) Lord Justice Ryder stressed that "family courts should proactively consider the strategy that has been set in cases of intractable opposition including whether a professional or the judge should communicate with a child in writing or face to face." It was not Lord Justice Ryder's view that a further contested hearing at which the child saw the judge would achieve any more than the current situation.

3) It is not accurate to say that the grandmother did not give evidence, as all parties gave submissions to the judge and suggested questions that they wanted to be answered.  HHJ Moir made every effort to hear each adult.

4) Ryder LJ suggested that when there is a litigant in person involved, they should be sworn in or affirm before they make submissions, so that there is formal evidence on the record. The judge should also explain to the litigant in person that they can ask questions through the judge who will decide whether the questions are appropriate.

5) The documents which the grandmother stated were missing from the court were not relevant.

6) The Court of Appeal provided advice to the grandmother in relation to indirect contact orders.

Summary by Laura McMullan, barrister, Coram Chambers

_____________________



Neutral Citation Number: [2014] EWCA Civ 271
B4/2013/1672

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT NORTH SHIELDS


Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 4 February 2014


B e f o r e:

LORD JUSTICE LAWS

LORD JUSTICE RYDER

LORD JUSTICE UNDERHILL

IN THE MATTER OF H (A CHILD)

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The applicant grandmother appeared in person
The Respondent did not appear and was not represented.

J U D G M E N T
(Approved)

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1. LORD JUSTICE RYDER:  This is an appeal within private law children proceedings between the mother and the maternal grandmother of a child, who I shall call A, who is now 9 years of age.  A lives with her mother and does not have direct contact with her father who takes no further part in these proceedings. 

2. The appeal concerns an order made by HHJ Moir in the Newcastle County Court on 20 May 2013.  The long delay in determining the appeal is because the previous hearing of the appeal in October 2013 had to be vacated when the representatives for mother and the child did not attend because they had not been notified.  On 20 May 2013, HHJ Moir refused the grandmother's application for direct contact with A and limited contact to indirect contact; that is cards and small gifts. 

3. The background circumstances are these.  Prior to February 2011, grandmother had extensive contact with A.  In February 2011, contact came to an abrupt end as a consequence of what appears to have been a row between the grandmother and her daughter.  That is A's mother.  About two weeks later, a situation arose whereby grandmother contacted both the police and Children's Services concerning an allegation which she said A had made to her about her stepfather.  The grandmother reported the allegation to the authorities without informing A's mother.  The allegation was investigated and in the course of that investigation, A denied that anything improper had occurred or that she had made the allegation.  Perhaps unsurprisingly, the investigation led to considerable feelings of ill will towards the grandmother on the part of A and her mother.  The family has been estranged since these two events. 

4. The grandmother commenced proceedings to have direct contact with A and obtained permission to make that application.  The proceedings have been protracted with the matter having been before, grandmother says, nine judges before it came in front of Holman J on 29 January 2013.  At the hearing before Holman J, it was held to be in A's best interests to have contact with her grandmother and that all possible efforts should be made to repair the damage between them.  The judge ordered direct contact initially limited to two child contact visits at a local swimming baths to be facilitated by the children's guardian. 

5. The first direct contact session between grandmother and A was organised, but A refused to attend.  Grandmother made an application to enforce Holman J's direct contact order which eventually came before HHJ Moir on 20 May 2013.  On that occasion, HHJ Moir accepted that the trial contact had not been successful and that it was not in A's best interest to pursue direct contact any further.  HHJ Moir heard submissions from the grandmother, the child's mother and the child's guardian.  She acknowledged Holman J's view that "all possible efforts should be made to repair the damage between grandmother and the child" and agreed that "it is beneficial to a child to have contact with wider family such as grandmother".

6. HHJ Moir also acknowledged that A's wish was that she did not want to have contact with her grandmother and that she had remained consistent in that view throughout the proceedings.  A did have the benefit of contact with her wider family through her uncles and cousins.  Grandmother confirms to this court today that sadly there is no interlocutor, that is no bridge, between the wider family, the child, the child's mother and herself.  HHJ Moir weighed up the emotional harm to A of not seeing her grandmother against the harm which would result from trying to force her to have direct contact against her wishes.  The judge concluded that direct contact was not practical in all the circumstances.  She went on to order indirect contact in the terms I have described. 

7. Grandmother asks this Court to set aside and/or vary HHJ Moir's order so that there will be direct contact three times a year.  Her grounds of appeal can be summarised as follows.  Firstly, the judge failed to consider or follow Holman J's order of 29 January which put in place direct contact.  Secondly, the grandmother was not given the opportunity to give evidence at the hearing before HHJ Moir and yet the child's guardian was invited to do so.  Thirdly, that the judge based her decision on insufficient documents.  Fourthly, the judge had provided insufficient instruction in relation to the indirect contact order. 

8. I shall deal with each of those questions in turn.  Grandmother submits that the CAFCASS report from the children's guardian did not properly consider the long term emotional damage that a lack of contact with the grandmother would entail and that the guardian took a different position on welfare to that reached by Holman J.  In addition, grandmother submits that Holman J's order stated that the case should be heard by the same judge so as to establish judicial continuity and that this had not been adhered to so that the judge's overall strategy was not carried through. 

9. The grandmother's submissions build on the observations of McFarlane LJ in Re: A (A Child) [2013] EWCA Civ 1104 i.e. that this grandmother had de facto family life with her grandchild and permission to make a direct contact application so that it is arguable that Article 8 of the European Convention on Human Rights is engaged.  If engaged, she submits, the interference with the right would need to be justified and that would involve a proportionality evaluation by the Court.  I need not comment on these submissions.  All I need to record is that McFarlane LJ sets out the relevant principles to be applied at paragraphs 42 to 46 inclusive, 53 and 60 of his judgment in Re: A.  One has to be cautious in this analysis.  Re: A concerned two parents with parental responsibility, not a grandmother exercising contact with her grandchild.  That said, the essential principles are the same. 

10. In this case, the judge conducted a careful welfare analysis based upon the CAFCASS children's guardian's evidence and submissions.  She cannot be criticised for that.  For all that grandmother believes that the CAFCASS practitioner never believed in the merits of contact, the evidence was that he loyally put Holman J's plan into effect. 

11. With respect to HHJ Moir, I disagree with her that Holman J's call for judicial continuity was "only background".  It was central and made in accordance with paragraph 60 of Re: A.  His direction should have been complied with by Her Majesty's Courts and Tribunals Service who should have obtained HHJ Moir's assistance and directions if there was any doubt about how to put the direction into effect.  The purpose of that direction goes to the heart of this appeal.  It was to achieve a judicially set strategy for the case in accordance with paragraph 60 of Re: A.

12. The question for this Court is whether that strategy was achieved.   It appears to me that it was.  The notes from the CAFCASS children's guardian demonstrate that he made genuine and repeated efforts, despite his professional opinion to the contrary, to effect Holman J's order.  HHJ Moir permitted the grandmother the opportunity to raise questions about that.  The judge then considered the strategy set by Holman J and concluded that within the terms set by him there had not been any success.  The judge could have considered whether she, as the new judge inheriting the case, or the children's guardian should speak with A about her apparent misconceptions of fact and also about what Holman J had decided and why.  However, this Court has had the benefit of hearing from the children's guardian on that point.  It is clear that he had quite detailed discussions with A after the decision of Holman J.  It is a matter of some regret, but not criticism, that those discussions followed the effect of discussions within the family which included A and which immediately followed a late hearing in Court which precluded Holman J from seeing the child himself. 

13. For my part, I would wish to stress that family courts should proactively consider the strategy that has been set in cases of intractable opposition including whether a professional or the judge should communicate with a child in writing or face to face.  The child's wishes and feelings are not determinative.  Her welfare is.  The fact that a child declines to do something is not necessarily the end of a case. 

14. This Court has had the benefit of the guardian giving advice to us about whether a question can now be put to A about whether she should see a judge and for that judge to explain to her both any factual misconceptions she may have and the reasoning behind Holman J's order.  The children's guardian tells this Court in terms he would not advise that course and that it would not be in her best interests.  This young girl has moved on from the time at which she used to see her grandmother regularly and is now in the process of a step parental adoption application.  She has no knowledge of the appeal before this Court. 

15. The children's guardian would himself be unwilling to ask her further questions in the context of a request from the Court unless he is directed so to do.  With his knowledge and to use his own words, the trust the child has invested in him in the past, he would be very reluctant to embark on that course now because of the harm he believes it would cause A. 

16. In that circumstance, it seems to me highly unlikely that a further contested hearing at which the child is brought to see the judge even in informal circumstances away from a court building could achieve more than the present inadequate resolution.  The risk of further harm to A is patent.  On the facts of this case, therefore, I would conclude with hesitation and sadness that at the moment there is nothing further a court can or should be asked to do and accordingly that HHJ Moir was neither wrong in her evaluation nor the order that she made. 

17. Grandmother has additionally submitted to this Court that she was not given the opportunity to give evidence and that HHJ Moir did not have all relevant documents before her when making her decision.  The first submission is not entirely accurate.  Grandmother, mother and the children's guardian made submissions to the judge and suggested questions that they wanted to be answered. 

18. For my part, I would strongly suggest that in future, in an environment in which litigants in person are now the rule rather than the exception, a judge should have each party sworn or affirmed before they make submissions so that there is formal evidence on the record from that person and also that it is explained to each litigant in person by the judge that they can ask questions if necessary through the judge who will then decide whether the question is appropriate, for example, on the grounds of relevance. 

19. I do not believe that HHJ Moir strayed from the good practice I have identified.  Indeed, she appears to have made every effort to hear each relevant adult who was in court before her. 

20. The submission that there were important documents missing from the Court below is likewise not entirely accurate.  The documents identified were not relevant; for example, the transcript of the section 10(9) permission hearing before HHJ Mather which was based on submissions alone and a letter to a Member of Parliament setting out matters that were effectively put to the Court by the grandmother herself. 

21. Finally, grandmother complains about the lack of advice from the Court below in relation to indirect contact.  This Court has taken the opportunity to express to her the standard advice given to those who have the benefit of indirect contact orders.  It is to be hoped that grandmother will find the offices of CAFCASS of assistance in any further queries she may have. 

22. In all the circumstances, I would dismiss this appeal but like the judge below, would not close the door to direct contact in the future.  A's mother must understand, as CAFCASS clearly do, that A may soon develop a more independent mind and the balance of harm may change.  There must be no suggestion that A is persuaded against her grandmother, who one judge on the merits has already decided would enhance her welfare were contact to be feasible. 

23. One must not forget that the children's guardian conceded before Holman J that he had omitted from his analysis the child's initial view, now well overtaken by the negativity that exists, which was that she would be willing to see her grandmother "a little, though not a lot".  That was after the two incidents which caused the break up of the family. 

24. For my part, I would wish to end this judgment by reminding everybody that there must be a mechanism for A, should she change her mind, to inform those who can give effect to that change.  I would wish the children's guardian to quietly and appropriately inform A that her grandmother still wishes to see her and that if in the future she comes to the view that she wishes to see her grandmother, she should inform CAFCASS or those at her school so that something can be done to effect that.  In saying this, I make it clear that she is not to be told that this is the conclusion of a court or that judges have expressed the view that this is what she should be doing.  It is an invitation to her in neutral terms to express her own wishes when it is appropriate to do so.

25. LORD JUSTICE LAWS:  I agree.

26. LORD JUSTICE UNDERHILL:  I also agree.  I would wish respectfully to underline what my Lord Ryder LJ has said as to the desirability of this young girl being told that her grandmother would still wish to see her.