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Home > Judgments > 2014 archive

F-D v The Child and Family Court Advisory Service [2014] EWHC 1619 (QB)

Claim by father for damages against Cafcass – claim alleging negligence, misfeasance in public office and breach of article 8 rights – consideration of whether duty of care owed by Cafcass to the father and whether such duty had been breached – claim dismissed.

The claimant was the father of the child concerned ('R'). He had been enjoying staying contact with R pursuant to an order made in 2004 until an incident at a handover in 2008 which involved both the mother and the father making cross allegations of assault. Contact ceased after the incident, with the mother stating that the child did not want to see the father. On 23 October 2008 the father made an application for a non-molestation order and a further application for a contact order (not for an order enforcing the previous order, although this would have been open to him), which came to a First Hearing Dispute Resolution Appointment (FHDRA) on 3 February 2009. At that hearing the mother had been opposed to any contact. The parties were interviewed at Court by a Cafcass officer, Mrs Ford. The result of that hearing was that no order was made in relation to contact. A fact-finding hearing (which had been listed within the non-molestation proceedings) was listed in May 2009. Prior to that hearing, the father withdrew his application for a contact order.

The father then brought a civil claim for damages, alleging negligence, misfeasance in public office on the part of Cafcass and breach of his rights under Article 8 ECHR.

The court set out the duties of Cafcass as imposed by section 12 of the Criminal Justice and Court Services Act 2000, which are child centred, impose a dury to advise the court and to provide information, advice and other support for the families of children. It considered that there was not a public duty owed by the service to an individual father of a child in proceedings (paragraph 145). It considered whether there was a common law duty of care owed by Cafcass to the father in this case and concluded that it was not fair, just and reasonable to impose a duty of care on Cafcass towards the father (see paragraphs 148 to 160). It further held that even if there had been such a duty, applying the Bolam test of whether their actions fell outside the standards to be expected of a reasonable body of similar practitioners, there would not have been a breach of the duty of care in any event.

The Court conducted a detailed inquiry into the events at the FHDRA, the conduct of the Cafcass officer towards the father and her advice to the judge and the guidance which existed in 2009 as to Cafcass' role at FHDRAs. It concluded that the officer had not been partial toward the mother, had not accepted the mother's account of events (but had merely accurately reported the mother's allegations and accurately stated that she opposed contact) and it was not reasonable to have expected Cafcass to have had a meeting with the child prior to the hearing. Although the Claimant's complaint against Cafcass had been in part upheld by an internal investigation (which had been the subject of significant delay), the Judge expressed misgivings about a number of the conclusions drawn by the report, whose author had not been called for cross examination in this case (see paragraphs 59 to 81).

It was held that there had been a negligent failure on the part of Cafcass to investigate the father's complaint but this had no impact on the contact application.

Further, the Claimant had not established any actionable loss. He had accepted that he did not intend to commence further proceedings to re-establish contact with R and, thus, there is no financial claim arising from that.  He had lost contact with R but there was no "psychiatric injury" suffered by him. Further, a claimant could not, through an action in negligence, seek compensation for upset and hurt to feelings or for the loss of a family relationship (Hamilton-Jones v David and Snape (a firm) [2004] 1 WLR 924).

In respect of the claim for misfeasance in public office, the Court noted that this would require a finding of bad faith, malice or an improper motive on the part of the Cafcass officer. Any suggestion that this was the case was rejected by the Court.

In respect of the claim under article 8, it was held that Cafcass did have a duty to ensure that the article 8 rights of the Claimant were not breached and it was conceivable that had Cafcass acted negligently, the Claimant might have been able to argue a breach of his article 8 rights which was caused by them. However, at the Judge had found that Cafcass had not acted negligently, it was not arguable that they had breached the Claimant's article 8 rights and in any event, this would only have been actionable up to the point at which he withdrew his application.

In the event that the Court had found the claims for damages well founded, it would have considered a sum of £3,500 just satisfaction for the claim. However, as no breach had been found, the claims were dismissed and no damages awarded.

Case summary by Thomas Dudley, barrister, 1 Garden Court 



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Neutral Citation Number: [2014] EWHC 1619 (QB)
Case No: HQ2X00408

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL
Handed Down at Cardiff Civil Justice Centre
2 Park Street Cardiff CF10 1ET
Date: 11/06/2014

Before:

HIS HONOUR JUDGE BIDDER QC
SITTING AS A DEPUTY HIGH COURT JUDGE

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Between :

F-D
 Claimant
- and - 
THE CHILDREN AND FAMILY COURT ADVISORY SERVICE Defendant
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The Claimant was unrepresented
Adam Weitzman (instructed by Penny Logan, Principal Lawyer, Cafcass Legal Services) for the Defendant

Hearing dates: 3rd to 7th inclusive, & 11th March (2014)
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Judgment
His Honour Judge Bidder QC:

1. Although the parties addressed me at the beginning of the case about the anonymisation of this judgment to avoid the possibility of distress or psychological harm to the child referred to extensively in this case, they did not take the opportunity at the end of the case to make further submissions. At the handing down of this judgment or at a later hearing if the parties cannot agree on the issues of costs and any ancillary matter, including the extent of anonymisation, if any, and the terms of the order, I shall hear further argument.  However, for the time being, I am satisfied that the need to protect the child's right to a private and family life requires the anonymisation of this judgment, to this extent, that the child shall be known as R and the Claimant's unusual name will be referred to in the title of the case and throughout as F-D.  I have referred through out to the child's mother as "the mother" or "M" and will give initials for the courts involved in the family proceeding.

2. In this action the Claimant claims damages against the Defendant service for negligence, misfeasance in public office, and for a breach of his right to a family life under article 8 of the European Convention of Human Rights and under the Human Rights Act 1998.

3. The action arises out of a most unhappy dispute between the Claimant and his former wife over residence and contact with their now 16-year-old son, R. The Claimant claims that as a result of the negligent advice and support given by Cafcass and, in particular, its duty officer at a hearing on 3 February 2009, namely, a family support worker (FSW), Mrs Eileen Ford, the Court made an order which effectively deprived him of continuing contact with his son. Thereafter he contends that the Defendant failed to attend a directions hearing and failed to take timely steps to prepare a welfare report which he contends would have supported his claim for contact. As a result of the behaviour of Mrs Ford at the hearing of 3 February, the Claimant made a formal complaint to Cafcass. As a result of the delays, both in the preparation of the report and in the dealing with his complaint, coupled with delays by the court, he says that he lost heart and withdrew his application for residence and contact.

4. He says that the same negligent behaviour which he particularises in his Particulars of Claim also amounts to misfeasance in public office and also disproportionately breached his right to private and family life under article 8.

5. He has not seen his son nor has his son seen him since 12 October 2008. On any account that is a tragedy for him and it is arguable that it also represents a tragedy for his son.

6. The Claimant's case, which he presented himself without representation and with considerable ability, depends on following a chronological analysis of events which he calls his "timeline". To do justice to his case, I will set out events in a similar chronological fashion.

7. On 10 September 2004, His Honour Judge Caddick made a detailed contact and residence order in relation to R, which order can be found in the Defendant's bundle 1 page 266. It included staying contact. Such contact was regularly exercised by the Claimant until 12 October 2008. All that need be said at this stage about that day is that there was a heated dispute between the Claimant and R's mother, wife referred to as M hereafter. The dispute was over the arrangements for the Claimant to pick up R for contact. It descended into an argument on the doorstep of the Claimant's house. There are and were different accounts given by the Claimant and his wife about what happened. Both parties alleged some physical violence used by the other against them and it is common ground that R witnessed what happened. The Claimant has a new partner and young children. They too witnessed the argument. It would be understandable if they and R found it distressing. It appears that both the Claimant and M reported each other to the police although there were no criminal proceedings.

8. On 23 October 2008 the Claimant applied for a non-molestation order against M under the Family Law Act 1996. On the same day, he made an application under section 8 of the Children Act 1989 for contact with R, contact having ceased after the altercation on 12 October. The application can be seen at D1 pages 260 to 265. It should be noted that it was an application to reinstate contact and not to enforce the 2004 order. The Claimant was represented in the proceedings. It would have been possible to attempt to enforce the 2004 proceedings.

9. It is clear that M's stance at that time and thereafter was that R did not want contact with the Claimant. She also applied, but much later, probably not before May 2009, for a non-molestation order against the Claimant. She alleged that he had used violence against her on 12 October. The Claimant disputed that.

10. The Claimant gave me detailed evidence consistent with his two written statements about the events on 12 October but it would not be helpful for me to summarise his evidence here. It can be found in his statements and I have not heard the mother. Also before me was the Claimant's statement in the Family Law Act proceedings and also the later statement by M. There are allegations and counter allegations about the behaviour of each party. M makes allegations of previous aggressive behaviour by the Claimant which he denies. There are slightly different versions of the incident on 12 October. The important matter for the purposes of the hearing of 3 February, which is the critical hearing as far as these proceedings are concerned,  is that each side was alleging violent conduct by the other in front of R although the physical violence alleged was quite minor.

11. After that incident contact did not take place in the following week and, according to the Claimant, M became difficult about contact, saying that R did not want to see the Claimant. The Claimant said he was concerned about his own family and therefore informed the police and made an application for a non-molestation order. It is likely that those actions by the Claimant increased the tension between the parties. The Claimant described their relationship as an acrimonious one and that seems to me to be accurate.

12. The Claimant said that he had been very keen for the court to give a date for the first hearing and I accept that he phoned the court and was told that there were delays for two reasons, namely that the court was busy and that Cafcass was busy. The Cafcass office covering the B Court was the Croydon office, a particularly busy office. The statistics suggest that the difficulties faced by Cafcass were worse in the London area.

13. The first listing of the application under the Children Act was on 3 February 2009. It was a hearing known as a First Hearing Dispute Resolution Appointment (FHDRA). It was a first hearing because the application was not to enforce the original contact order.

14. The application was in the form C1 (Claimant's bundle 1 page C1). It is to be noted that the application refers to the previous order made in 2004. Mrs Ford indicated to me that the duty officer for the FHDRA would have a file or docket which the Cafcass business support unit would prepare. She would be given that on the night before the hearing and would read it then or in the morning. The court would send Cafcass the Court list together with such documentation as the court had (in this case, the C1). I accept her evidence that the business support unit were responsible for making "safeguarding checks", that is, checks with the police and with the local social services department to see whether there had been any previous involvement with the child.

15. The hearing of the 3rd February was, of course, ordered by the County Court. I have been told by Mrs Parsons, who has been an assistant director of the Defendant, and I accept, that the period that elapsed between the Claimant's application for contact and the first hearing was not exceptional although a much shorter timescale is now prescribed under the current private law programme. The fixing of the FHDRA was a matter for the court although they would take into account the availability of Cafcass duty officers and the capacity of Cafcass to report.

16. The target window for the FHDRA was, under the guidance issued by the President of the Family Division extant at the time of 3 February 2009 hearing (exhibit SJP4 to Mrs Parsons' statement) 4 to 6 weeks from the issue of the application and was, ultimately, the responsibility of the Designated Family Judge responsible for each family hearing centre.

17. I also accept the unchallenged evidence of Mrs Parsons, supported by the statistical graphs exhibited to her statement, that is, at the time when the Claimant issued his application, and in 2009, Cafcass was subject to an unprecedented demand for its services. I accept the statistics referred to in paragraph 5 of her statement. The large rise in public law work was partly, though not exclusively, attributable to local authorities' reactions to the publicity surrounding the trial arising out of the death of baby P.

18. On 12 December 2008 an officer of the Defendants (presumably attached to the business support unit) made application to the police and the local social services for "safeguarding checks" against the child, the mother and the father. Those checks were not available by the hearing of 3 February. No blame can be attached to Cafcass for that.

19. It is important to recognise the context of the hearing of 3 February 2009. Cafcass duty officers had to comply with the "Private Law Programme", guidance issued by the President of the Family Division. The FHDRA was to identify immediate safety issues and to exercise effective court control so as to identify the aim of the proceedings, the timescale within which the aim could be achieved, the issues between the parties, the opportunities for the resolution of those issues by appropriate referrals for support and assistance and any subsequent steps that might be permitted or required. Wherever possible a Cafcass practitioner should have been available to the court at the FHDRA and also to the family. The purpose of the practitioner was to facilitate early dispute resolution rather than to provide a formal report.

20. It is also important to note that it was the court's responsibility to further the overriding objective (set out at D1/182) by continuous and active case management so as to achieve amongst other aims the avoidance of unnecessary delay.

21. At the conclusion of the FHDRA the court was obliged to identify on the face of its order the issues that were determined, agreed or disagreed and in respect of issues that were not agreed and that needed to be determined so as to safeguard the welfare of the child to identify the level of court before whom all future non-conciliation hearings and applications were to be heard, the timetable and sequence of steps required to lead to an early hearing, the filing and service of evidence limited to such of the issues as the court might identify and whether a Cafcass practitioner's report was necessary and if so, the issues to which the report was to be directed.

22. The Private Law Programme Guidance indicates that in relation to the FHDRA Cafcass should undertake their own paper risk assessment as to safety issues prior to the application being listed for the appointment. There is no indication that was done by the business support unit but I accept risk assessment was done by Mrs Ford and was contained in her own notes of the hearing.  She had initially made bullet point notes and when she got back to her office on the day of the hearing of the 3rd February she made more detailed notes.

23. The guidance indicates that at court further risk assessment may be undertaken by the Cafcass practitioner with the child (if appropriate) and each party separately prior to any joint meeting between the practitioner and the parties. No one suggests that it was in the child's best interests that the child should have been spoken to by the Cafcass practitioner at the hearing on 3 February and R was not present.

24. Where an agreement is reached by the parties the guidance indicates that the terms of the agreement are considered by the judge to decide whether they are appropriate and whether an order is necessary. Where full agreement is not reached the judge gives directions and a timetable for the case to come back to court dealing in particular with the aim of the next hearing, the issues that need to be determined, the evidence that should be filed for those purposes and any interim provisions.

25. If a Cafcass report is necessary the key issues to which the report was to be directed should be identified as should the question of whether the issues could be dealt with in a short report.

26. As to what happened at the hearing of 3 February there is some dispute. It is common ground that Mrs Ford interviewed both M and the Claimant on their own, without their counsel. She interviewed M first.

27. The Claimant said that when Mrs Ford came to see him it did not seem like an interview. Rather he says that he was told very quickly that he would not be seeing his son. According to the Claimant, Mrs Ford indicated that she had spoken to M, that R was receiving counselling, that he didn't want to see the Claimant and she suggested that he concentrated on getting contact with the grandparents. The Claimant said that in his turn he asked what was going on; that there were two sides of the October incident and that he had brought the non-molestation application. He pointed out that there had been no reply to that application and that Mrs Ford must look at all the factors. According to him Mrs Ford would not have that and they ended up going round in circles.

28. He says that she stressed that R was being seen by the Child and Adolescent Mental Health Services (CAMHS). The Claimant also indicates that he told Mrs Ford that he had a court order, as he put it, expensively acquired. He says that he persisted politely and was not aggressive. When his barrister had suggested new legislation (contact activities) Mrs Ford had rejected that as an option, saying that it was unworkable. She also rejected the preparation of a "wishes and feelings" report which she said was not applicable.

29. Eventually, said the Claimant, Mrs Ford told his counsel to take him out of the room. He says he was left shocked.

30. His barrister told him that a section 7 report by Cafcass would be ordered but that would take months. There was then discussion lasting over an hour about contact by the grandparents, which he said was discussion between the barristers and Mrs Ford. The Claimant said that he felt abruptly dealt with and that Mrs Ford was very rude and not impartial. He said that Mrs Ford advised them, that is, he and his barrister against pursuing contact and to concentrate on negotiating grandparent contact.

31. According to the Claimant once he and his barrister realised that he was not going to see his son in a hurry they decided that pursuing the non-molestation injunction was the quickest way of establishing the facts and would give a quicker result than waiting for the section 7 report. He said he was confident of the non-molestation order going in his favour. He said there was no agreement over contact with R.

32. During the course of cross-examination he was referred to the case summary sheet completed by Mrs Ford immediately after the hearing as a record to be put onto the file or docket for future caseworkers. It can be found at C1-12 a. That confirms that a risk identification (which I assume is a separate form) was not completed. I do not know why that was the case because it is clear from Mrs Ford's handwritten notes, (next to her statement at D1 243-245) that she identified the allegations of violence by both parties on 12 October and the fact that R was present and witnessing that violence. It may be that there was no risk identification completed because the business support unit had not received replies from the police or the social services to determine whether there had been prior contact in relation to the child. I accept Mrs Ford's evidence that it was the responsibility of the business support unit to do those checks.

33. She noted on that form correctly that the child had been referred to CAMHS for 4 February for counselling and that the child was already receiving counselling at school. She noted that the mother's allegation was that R was refusing to have contact and that he wanted to see his grandparents but only at his home (according to his mother) she also noted that there had been no agreement about contact by the father.

34. During cross-examination the Claimant said that he could see no reason why the judge was being advised "zero contact". I asked him why he was saying that the judge was advised in that way. He told me that Mrs Ford clearly stated to him that she would make the assessment and advise the judge accordingly after seeing him. That is consistent with paragraph 23 of the Claimant's statement at D1-83. That statement sets out in more detail his account of the hearing but I have concentrated in my outline on his oral evidence to me.

35. In support of his case, the Claimant relied on a letter to his solicitors of 18 August 2009 from his barrister Emily Driver.  That letter and Miss Driver's advice note, which was prepared roughly contemporaneously after the hearing, are at C1-C 85 to C 89. In summary, Miss Driver indicates that both counsel told Mrs Ford from the outset that this was an acrimonious case. Mrs Ford then interviewed the mother alone. Miss Driver says in a letter that Mrs Ford gave the clear impression that she believed the mother, who purported to speak on behalf on the child, saying that the child did not want any contact. According to Miss Driver, Mrs Ford would not accept for a moment that there might be a case that the mother was misrepresenting the child's true wishes and feelings. She says that Mrs Ford rejected obligatory contact activities as pointless and unworkable. She also said that Mrs Ford took what she personally considered to be slightly quick umbrage at the Claimant's anger, which she said was "certainly expressed to her robustly". She thought that Mrs Ford's asking the Claimant to leave the room could be seen as premature and the impression that he would then have formed was that Mrs Ford was not prepared to listen to his side of the case.

36. As to CAMHS' involvement she says in a letter that when told about that Mrs Ford said that that was even more reason to believe the child's alleged wishes. Importantly, however, in her letter she says that Mrs Ford did not say that, but for the CAMHS' involvement, there should be contact. That contradicts the Claimant's recollection of the importance that Mrs Ford appeared to attach to that involvement at the hearing.

37. In my judgment, Miss Driver's note of the interview with the Claimant when she was present is significantly less critical of Mrs Ford than she is in her letter. The note indicates that the Claimant instructed Miss Driver to liaise on the question of grandparental contact. That seems to me to indicate that the Claimant had accepted that it was not going to be possible to achieve contact by him at this hearing. The note also indicates, confirming the actual order, that there was agreement on the order that the judge was being asked to approve.

38. The Defendants sought and obtained an order for the attendance of Miss Driver for cross-examination. She agreed that after discussions with her opposing counsel she established that there was no significant level of agreement between the parties. She said the impression was that the mother was extremely difficult. She acknowledged that this was a conciliation hearing. She agreed that the parties would not be present when the Cafcass officer saw the judge. If there was no agreement as to contact the judge had total discretion to impose contact or wait and she said that judges were influenced by advice given to them by Cafcass. However, the usual routine was that if there was no agreement the matter was adjourned for evidence and a disputed hearing which he said was what happened here. She agreed that the order, D1-268 represented what she had agreed with her opponent. She said that it was rare for a judge to order parental contact if that was not agreed. The judge, she said, was aware that the child had been referred to CAMHS and that it was being alleged that the child was unwilling to have contact. In those circumstances she agreed that it would be abnormal to impose contact on the mother. She said that everyone understood that nothing would happen until the matters had been picked apart either by a fact-finding hearing or by Cafcass

39. Miss Driver recollected that the hearing date for 11 May for the fact-finding hearing had already been listed by the court before 3 February.

40. She said that she did not have the Claimant's statement or an affidavit in the Family Law Act proceedings. That significantly contradicts the evidence of the Claimant that he had his statement in those proceedings in his possession when he spoke to Mrs Ford and asked her to read it. I believe he must be mistaken about that.

41. Miss Driver acknowledged that the section 7 report would take about 16 weeks to prepare and was happy with the date of 11 May because it would get the matter back before Judge Lee with whom she had a good relationship and she felt she could bring pressure to bear on the mother. She acknowledged that the Cafcass report would take account of the fact-finding hearing on 11 May. If the findings were favourable to the Claimant it would prove that he was not responsible for violence. However she said that no one regarded the incident of the 12th October as one on which contact turned. Indeed at the hearing in April she said that Judge Lee had taken the view that it was not an incident which needed a fact-finding report and that was when the judge separated the two proceedings. It should be said that that is a different view of the hearing in April from that of the mother's solicitors, who wrote to Cafcass (D2-408) enclosing the order on 20 April 2009 and indicating that the Children Act and Family Law Act proceedings have been consolidated by the court and that the fact-finding hearing on 2 November 2009 now related to both. The order, C1-C 35 does not resolve that dispute and, without hearing evidence from the mothers representatives, it is impossible for me to resolve that.

42. Miss Driver said the judge had no time to hear evidence at this hearing in February and so it was understood that the parties were adjourning for parental contact to be considered. When Miss Driver was asked about the contents of her letter and note and her statement that the Cafcass officer appeared not to be able to understand that the mother might be misrepresenting the position and when it was put to her that what that meant was that the father did not believe the mother she accepted that version of what had happened. Indeed she later confirmed that it had been the Claimant who had been concerned that Mrs Ford was not willing to accept that the mother was not telling the truth. However, Miss Driver did not accept that Mrs Ford simply indicated that she did not want to choose between the two accounts and said that that was not how it came over. She did say that Mrs Ford's behaviour did look one-sided. She agreed that the Claimant had been angry that she had been struck by the fact that Mrs Ford asked her to take her client out. Her professional opinion was that Mrs Ford's attitude appeared too personal.

43. She agreed that Mrs Ford had not said that but for CAMHS there should be contact. Again that contradicts the Claimant's case. She did not confirm the Claimant's account that Mrs Ford had said that there should not be contact. When asked whether she agreed that Mrs Ford was not in a position to recommend contact she said she did not agree with that because Cafcass had great power with the judge but in this case she did agree that Mrs Ford could not have moved this mother. She said that if the mother refused contact it was not going to happen.

44. Mrs Ford's statement is a D1-233. Although she was not a Family Court Adviser (qualified social workers employed in that role by Cafcass) but rather a Family Support Worker (FSA), she had had very substantial experience in this work. Before the establishment of Cafcass she was a member of the Court Welfare Officer Service and was a contact centre coordinator. She had carried out court duty for Cafcass virtually since its inception in 2001. At paragraph 8 of her statement she indicates that the Private Law Programme guidance was that Cafcass could not support the making of court orders or agreements entered into if its safeguarding checks had not been received. That accords with the then guidance.

45. I also accept her evidence in paragraphs 9 to 12 of her general practice.

46. In her statement Mrs Ford relies on what she says are roughly contemporaneous notes exhibited to her statement from 243-245. They are slightly in the wrong order. 244 should precede 243. She told me, and I accept that at court she made bullet point notes which she used to write the longer notes beginning at 243 when she returned to the office. The first two thirds of 244 represent the account that she was given by the mother. It includes an allegation of domestic violence by the Claimant. There then follows what I accept to be her notes of her interview with the Claimant. It clearly is what he told her and conforms with the evidence that he gave me of what he said to her at court. For example, at the top of 243, there is the indication that the order of September 2004 had been working until the incident.

47. The notes do not clearly indicate where the interviews with the Claimant and the mother on their own differ from the notes of discussions with counsel present. At page 244 the notes read "reluctantly accepted that at this time whilst undergoing counselling and mother's allegation that he was refusing to see dad, it was best to stand back". In fact, as was confirmed by Miss Driver, the order at page 268 was a consent order. Indeed the Claimant eventually accepted that.

48. It is also noteworthy that Mrs Ford set out in the notes that she explained that "we needed to have fact-finding hearing". It is also significant that the notes contain the following statement, in relation to R "I said I was unable to force him to come to court and as I had not had an opportunity to speak to him could not agree that the mother was not telling the truth."

49. At the foot of page 243 there is the following note "he asked for his mother to be allowed to see R but became very angry when he thought mother was dictating whole process... Interview terminated".

50. I can, therefore, confidently conclude that Mrs. Ford is correct in stating, at paragraph 14 of her statement, that both parents were making cross allegations of violence.  Equally I find, with equal confidence, that she is correct in stating that there had been no contact since the October incident and that a fact finding hearing for the FLA application was set down already for 11th May.  I also accept that she made a judgment at the hearing in February that, having regard to the then extant practice direction ([2009] 2FLR 1400 – see D1-212) the facts of what happened at the October incident "would be relevant in deciding whether to make an order about residence or contact" (to quote from the practice direction.  Indeed, even if the parties were agreed on a parental contact order (which, on any account, they were not), the Court could not have made an order except where the court was satisfied that there was no risk of harm to the child in so doing. "Harm" is defined in the practice direction as, "ill treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill treatment of another."

51. The Practice Direction goes on to indicate that in considering, on an application for contact, whether there was any risk of harm to the child, the court should consider all the evidence and information available and may direct a section 7 report before it makes its determination.

52. This hearing was one of several in the judge's list.  As Miss Driver accepted, it was quite impossible for the judge to hear evidence.  There was, therefore, an irreconcilable conflict of evidence about who was responsible for domestic violence in October but agreement that the child had witnessed it. Neither was it in dispute that the child was receiving counselling at school, whatever may have been the position with CAMHS. M was not going to consent to contact and Miss Driver was, no doubt, accurate in indicating that "Mrs Ford was not going to move the mother."

53.  In those circumstances, again as Miss Driver recognised, there was patently a risk of harm to the child and there was no prospect whatsoever of the court being able or willing to order contact to the Claimant on the 3rd February. 

54. In her statement, Mrs Ford says, and, on the basis of Miss Driver's confirmatory evidence, I accept, that the involvement of CAMHS was not the principal obstacle to contact at that point.  The principal obstacle was the attitude of M to contact and, whether it was true or not, M's contention that R did not want contact.  The judge was not in a position to resolve that factual issue at the 3rd February hearing.

55. Mrs. Ford's evidence in her statement is that she did not consider it in the child's interests to reinstate contact at that point given that he had witnessed a violent incident.  Having regard to the practice direction, it seems to me impossible to say that she could be criticised for taking that view.

56. She agrees with Miss Driver's note that she considered the possibility of ordering contact activities under the then relatively new legislation to be unhelpful.  Such activities were ordered in order to enforce existing contact orders, whereas, in this case, the court had before it an application for a fresh contact order.  In any event, until it was actually established whether M was correct in saying that R did not want contact, there was no point in considering imposing penalties on M.  In my judgment, Mrs Ford is entirely correct in stating at paragraph 16 of her statement, that the court had no current evidential basis on which either to endorse or not endorse the 2004 order.

57. Mrs Ford denies she took personal offence.  She did, however, I accept, terminate the interview with the Claimant and his counsel.  Miss Driver confirms, contrary to the Claimant's evidence, that he was angry, though she says that that anger was no more than might have been expected in the circumstances.  Mrs Ford had already had an interview with the Claimant.  She did faithfully record what he was saying. This was clearly a very emotive hearing.  I consider it very likely that the Claimant was very persistent and probably was entirely unresponsive to what he was being told by Mrs Ford, as it did not accord with what he had wanted from the hearing.  I am prepared to accept, on balance, that Mrs Ford was brusque in her manner.  However, I cannot, on the evidence, accept she was rude or that she acted in an unprofessional way.  The Claimant and his barrister may have concluded that she gave the impression she had accepted the mother's account but their evidence is not at one on that and, again on balance, while I accept that was the impression both of them gained, I do not accept that Mrs Ford had, in fact, taken sides or lost objectivity.  She was merely indicating, correctly, that the mother's position was such and the circumstances were such, that there was no prospect of her agreeing to contact by the Claimant.

58. Mrs Ford then indicates in her statement that, after seeing the parties, as was normal practice, she went to see the judge and advised the judge that there was no agreement.

59. At this stage, I should indicate that there is another source of evidence about what happened at the hearing of the 3rd February and that is the report of Sally Butter, the investigating officer in the investigation by Cafcass into the Claimant's complaint against Mrs Ford and Cafcass.  I do not accept the submissions of the Defendant that that report is irrelevant, but it has very significant limitations as to the use which I can make of it.  First, it is hearsay.  Sally Butters has not been called before me to give evidence.  Second, the evidence collated by Sally Butters was not given on oath and I have little idea of how she tested the material she was given nor how rigorous was her fact finding investigation.  I do not have any contemporaneous notes that she made.  Mrs Ford says in her statement at paragraph 21 that she has been told that the notes of the meeting she attended with Sally Butter are not available.  That statement by Mrs Ford has neither been explored nor challenged by the Claimant.  The independent observer report adds nothing to that of Sally Butter.

60. Certainly I am not bound by the findings of the independent investigator but it seems to me that, where she purports to have obtained evidence from those who have given evidence to me in this action, her report may be given some weight by me.  Additionally, Sally Butter may have some expertise of her own which might carry some weight.  Unfortunately, apart from her being a member of the Cafcass Customer Service and Quality team, I have no details about her qualifications or experience.

61. Ms Butter sets out the details of her investigation at C132 and the Claimant relies on an email from Sally Butter to a Mr Larcombe (C1 – C155) indicating the time they took on the investigation and that they took a half day to interview Mrs Ford.  That only gives me a very limited idea of how accurate that interview was, without the notes or a statement to assist me.

62. I note that at C133 Ms Butter indicates that the "Risk Identification Form" completed by Mrs Ford and dated the 3rd February "confirms that the relevant information requested from the police and social service was available and both Eileen Ford and Jackie McGowan have confirmed this".  Whether or not Eileen Ford confirmed that the police and social service information was available I cannot say, as Mrs Ford was not asked about this but it is simply inaccurate to state that either the case summary form (D1-242) or Mrs Ford's notes indicate that that information was available on the 3rd February and Mr Mellor's very careful log contradicts that.  I very much doubt Mrs Ford confirmed something which was patently inaccurate on the face of the contemporary documentation and I am afraid it seems to me that Ms Butter has simply made a very clear mistake unless there is an RIF that I have not seen.

63. Next Ms Butter (C134) concludes that Mrs Ford "was not aware that there had been any previous involvement by Cafcass or of the s7 report compiled by Cafcass in 2004 (other than information supplied at court by Mr Fulton-Dowers).  Ms Ford is of the opinion that had she been aware of this and had access to the report it would have affected the outcome of the hearing in February 2009". 

64. That passage was put to Mrs Ford in cross examination by the Claimant and she said that she believed that the passage was in fact a misstatement of what she had said and that it should read that, had she been aware of the section 7 report it would not have affected the outcome of the February hearing.

65. Having heard Mrs Ford give evidence I believe, on balance, that she is correct in that evidence.  As she went on to say, the policies, safeguarding checks and the risks which were apparent as a result of what she had been told about the October incident were far more significant and I consider it is highly unlikely she would have conceded to Sally Butter that the previous s7 report, which was 4 years out of date, would have affected the hearing of 3rd February, which turned on the incident in October 2008 and R's then attitude to contact.

66. The contrasting accounts of the Claimant and Mrs Ford are set out at C1-C134/5 in the Butter report and the 3 paragraphs setting out Mrs Ford's account are entirely consistent with her evidence to me.

67. Ms Butter's findings appear to me to be capable of criticism.  It is true that no safeguarding assessment was done by a Family Court Adviser prior to the initial court hearing but the evidence of Sarah Jane Parsons for the Defendant, an assistant director in Cafcass, a qualified social worker for 27 years and employed by Cafcass for 15 years, was that there would have been no expectation in 2009 that in any like case a Cafcass officer would have spoken to or seen the parents before the first hearing and her expert view was that it was a crucial part of the case that both parents of R made serious allegations against each other of domestic violence witnessed by that child.  Thus, the Court and the Cafcass officer, whether that was an FCA or an FSW, would have had regard to the President's Practice Direction, to which I have already made reference.  There was, in this case, every possibility of harm to the child as defined in the Practice Direction and the Court, rather than the Cafcass officer would then have to consider whether to hold a fact finding hearing, which inevitably would lead to delay.  In Ms Parsons' experience the Court rarely orders direct unsupervised contact in such circumstances.

68. I am not clear from Sally Butter's report what additional information would have been available to the court which would have materially altered the situation at the February hearing had an FCA actually made a safeguarding assessment before the initial court hearing.  The material in the section 7 report for the 2004 hearing was very substantially out of date and the only sources of significant new material were the parents themselves and R and it is likely an FCA would have done precisely what Mrs Ford clearly did at the hearing, namely take a detailed account from both parents.

69. In the light of the evidence of Sarah Parsons, who struck me as a wholly objective witness and was not challenged on the practice she described at the time, it seems to me improbable, particularly given the great strain Cafcass was under in relation to managing resources in and around 2009 that any report would have been prepared for the court prior to the February hearing.  The judge did indeed order that R's wishes and feelings should be dealt with in a section 7 report, in accordance with the order which the parties actually agreed. 

70. In the 3rd bullet point reason for upholding the first of the Claimant's complaints at C135, Sally Butters says "there was no suggestion that either a wishes and feeling report was advised to ensure correct arrangements were in place prior to the substantive hearing or that alternative contact arrangements could be made that avoided the mother and father meeting.  In the context that there had been no contact between R and his father since October 08 and that the next hearing would not take place until May 09 some provision for the consideration of contact should have been made."

71. I entirely fail to see why, when it was for the Court to make or ratify an order and that this order was agreed by represented parties, this can be a justifiable reason for criticising Mrs Ford for any recommendation.  Moreover, the criticism is made on the assumption that there was a recommendation for "no contact".

72. That was denied by Mrs Ford in explicit terms to Sally Butters.  She had no other access to the conversation which had taken place between Mrs Ford and the judge. What Mrs Ford told her, namely, that there was agreement between the parties that there should be no contact with the father ordered at that hearing was no more than what the eventual consent order actually said, though it did not explicitly say " There shall be no contact".  However, the application before the court was for contact.  Mrs Ford has confirmed to me that she understood that the Claimant had agreed to "step back" in the interests of R and that is precisely what she has recorded in her contemporaneous notes (D1 -243).  Moreover, that is clearly what his instructions to Miss Driver actually were in that she was never instructed to make representations to the judge that there should be contact.

73. While Sally Butters has not given evidence before me, I am unable to understand from her report how she has concluded, contrary to the only positive evidence on the issue from Mrs Ford, evidence that is supported by the order and by the contemporaneous records, that Mrs Ford did "recommend" "no contact" to the judge. Indeed, having heard the evidence of three of those at the court that day, I am quite sure that she made no such recommendation but merely correctly advised the judge on the agreement which had been reached between the parties.

74. To conclude, as Sally Butters does, that there was a lack of due diligence by Mrs Ford, on the basis that there had been no suggestion of harm to R in the care of either parent since 2004, seems to me to ignore the contents of the then extant President's practice direction and the common evidence that R had witnessed domestic violence at the handover.  Moreover, it seems equally unfair to criticise Mrs Ford for not suggesting some form of interim "wishes and feelings" report establishing R's true view when the parties, each represented by counsel, agreed that a more extensive section 7 report dealing with contact, the wishes and feelings of R and the outcome of the Family Law Act hearing (see para. 5 of the order).  On the evidence I heard from Miss Driver, who describes the mother having taken up a fixed position, I conclude that it was inevitable that that would have been ordered even if the parties had not agreed it.

75. Sally Butter's conclusion that the provision of a service by CAMHS to R was seen as pivotal by Mrs Ford is not only contradicted in evidence to me by her but was rejected in evidence to me by Miss Driver.  In any event, as it turned out, while the mother had cancelled a pre-arranged appointment with CAMHS, R still had indicated he wanted to speak to CAMHS and their involvement had not ceased at the date of the February hearing. 

76. On the basis of the evidence before me, and, indeed, having regard to the evidence which appears to have been available to Sally Butter, I cannot accept her upholding of the first of the Claimant's complaints against Mrs Ford. 

77. The second complaint that Mrs Ford was rude, incompetent and dismissive was partially upheld in that Sally Butter concluded that Mrs Ford was dismissive and appeared angry.  She did not accept the allegation that Mrs Ford was rude and the allegation of incompetence (taken to relate to the interview with the Claimant) is not accepted, or, at least, only to the extent that she appeared to the Claimant and his counsel as being dismissive of his views and was not prepared to entertain a viewpoint that differed from that of the mother.  Those findings seem to me to be largely irrelevant to the issues before me but I should say that on balance I find that the view of both the Claimant and Miss Driver that Mrs Ford appeared to accept the view of the mother and was curt and dismissive to be more than a little coloured by their positions in the dispute. Miss Driver, in her evidence to me, took what seemed to me to be an "advocate's stance" and I was not entirely satisfied that she had been able to rise above the dispute to take a fully objective view of what went on at court. 

78. The notes of Mrs Ford suggest she certainly did listen to and record objectively the views of the Claimant and her notes are supported by the actual order agreed.  The mother had taken an intransigent line and it was entirely right that Mrs Ford should communicate that to the Claimant and his counsel.  Miss Driver accepts the Claimant was angry and I have no doubt, having seen him in court, that he would have been forceful and persistent in interview.  I can understand how, therefore, when terminating the interview with him, as she did, she may have appeared curt and dismissive.  She was, however, a very experienced court officer and I do not believe she was rude, neither do I accept on balance, that she had accepted the mother's view as being correct.

79. Sally Butter did not accept the third complaint that it was stated by Mrs Ford that if evidence was provided that there were no mental health issues regarding R than contact would take place.  That complaint was contradicted by Miss Driver and Sally Butter correctly finds that it was not within Mrs Ford's power to make any decisions regarding contact.  I, too, find that Mrs Ford did not say what the Claimant complained she had said.  It was, however, of significance, and, I am sure, would have been a material factor for the court had there been time for the judge to have considered interim contact, that R was receiving counselling at school and was still in contact with CAMHS.  Those 2 factors strongly suggested that a full section 7 report was necessary before contact was resumed.

80. In the light of the fact that I do not agree with the conclusions reached by Sally Butter in relation to complaints 1 and 2 and that she did not uphold complaint 3 it follows that, logically, I do not consider that her upholding the fourth complaint, namely, that the delay at step 1 of the complaint process had further compounded matters because, if upheld, it would have provided evidence to the court that the original recommendation was based on an invalid assessment, has any relevance to the issues being considered by me.  I should indicate that, in the light of the fact that the parties themselves had agreed an order that the section 7 report should deal with contact, wishes and feelings and the result of the "fact finding hearing", that is the hearing to deal with the Family Law Act claim, I cannot conceive that the result of the complaint process would have had any impact whatsoever on the court process.  The most Sally Butters concludes is that "had the process (of complaint) initially reflected this finding (that the advice to the judge lacked diligence) the subsequent hearing in April may (my stress) have had a different outcome."  Not only am I wholly satisfied that Mrs Ford did not advise the judge to order "no contact" but the fact that the February order was by consent means, in my judgment, that there was no prospect whatsoever that the result of the complaint process would have had the slightest effect on the April hearing or, indeed, in my judgment, on the court process generally.

81. I am afraid, therefore, that, while I have not accepted the Defendant's invitation to treat as irrelevant the conclusions of Sally Butter, I regard her conclusions as unsatisfactory even on the evidence before her and, insofar as I have heard evidence from 3 of the parties involved in the February hearing, though I have not heard from her, I reject her findings which are critical of Mrs Ford's behaviour.

82. I should, therefore, summarise the facts that I find in relation to the February hearing.  I find that the mother had taken an intransigent line on contact and was continuing to maintain that R did not want contact.  No amount of persuasion was likely to shift her position.  Both parties alleged R had witnessed domestic violence at the handover.  Miss Driver accepted that at this hearing it was improbable that the judge, who had very limited time in the list, would have ordered interim contact.  The Claimant did indicate that in the circumstances, in the interest of R, he would "stand back" and did not instruct his counsel to argue for interim contact.  The information from the 2004 report on residence and contact was, effectively, so out of date to be irrelevant.  The information from the police and social services, even if it had been ready for the hearing, would have made no difference.  The Defendant had requested that information and it was not their fault that it was not available.

83. Mrs Ford listened carefully to both the mother and the Claimant and accurately recorded what they said to her. The consent order accurately reflected the agreement between the parties. Mrs Ford may have been somewhat curt to the Claimant towards the end of her interview with him in the presence of his counsel, but any objective observer would, by then, have recognised that there was no prospect of his obtaining interim contact.  She was not rude and she had not accepted the mother's account as accurate. She did not advise the judge to order no contact.  I can find no ground to criticise her behaviour at that hearing at all. 

84. I accept the submission of Mr Weitzman for the Defendant that it was not her role to adjudicate between the parties' conflicting accounts.  It was not pivotal to her that CAMHS was involved, nor did she indicate that to the Claimant or his counsel.  She did not indicate that if it turned out there was no mental health issue, contact should follow.  She did indicate to the judge that there was no agreement on contact by the Claimant as was the case.

85. I also accept Mr Weitzman's submissions that the order that was made by the judge by consent was almost a template of what was required by the then extant Practice Direction and was entirely in accordance with the guidelines on Domestic Violence.  It is hardly surprising that it was, having been drafted by 2 counsel, one of whom, Miss Driver, was a very experienced family law junior.  The judge was also experienced.

86. The Claimant has not explained why it would have made any difference to the February hearing had Cafcass been represented by a Family Court Adviser rather than the very experienced Family Support Worker, Mrs Ford.  I am quite unable to conclude on the facts that it would have made any difference at all.

87. Even applying the standards that would have been expected of a Family Court Adviser, I can find no negligent conduct by Mrs Ford in relation to the preparation for and participation in the hearing of the 3rd February 2009.  She was careful and conscientious and did nothing wrong.  I should say that, having regard to the entrenched position of the parties, the fact that R had on any account witnessed domestic violence and the fact he was receiving counselling at school, I am quite sure that nothing Mrs Ford did or did not do, altered the result of that hearing, which I am sure would have been the same, whoever had been the Cafcass representative.

88. Immediately after that hearing, on the 4th February 2009 the Claimant made a complaint to the Defendant about Mrs Ford's behaviour.  If I may simply jump ahead in the chronology to give the bare skeleton relating to the stages of the complaint, according to the Defendant's own rules for the conduct of such complaints, their deadline for responding to that complaint expired on the 24th February but there was no actual response by them until Mr. Moy's letter of the 11th May 2009 to the Claimant indicating that Mr Coupe, the head of the Croydon section, was following up his complaint.  An apology to the Claimant for the delay was sent on the 13th May and in that letter (D2-454) his complaint was, in effect, rejected.  He had not actually been interviewed by Cafcass and it was not until the 9th June that Mr Machen of the Defendant organisation met with the Claimant.  The delays in dealing with the first stage of the Claimant's complaint were despite his reminders and even despite intervention by his MP.

89. On the 10th June 2009 the Claimant notified the Defendant that he wished to move on to stage 2 of the Complaint's process, that is, the institution of an independent enquiry into his complaint, which was carried out by Sally Butter.  Stage 2 should have been complete, according to the Defendant's rules, by the 16th July 2009.  In fact, he was not informed of the result of stage 2 until he met Peter Coupe on the 2nd November 2009.  Again, reminders by the Defendant and intervention by Mr Nick Raynsford were to little avail in attempting to expedite the Defendant's complaint process.

90. On the 3rd November 2009 the Claimant asked that stage 3 of the process should be commenced, which involved the Butter report and the complaints, being considered by a Review Panel.  The third stage should have ended on the 15th December 2009 but, in fact, did not conclude until the Review Panel's findings were sent to the Claimant on the 19th March 2010, the Panel hearing having taken place on the 15th March.

91. It is quite obvious, and has, subsequently been recognised by the Defendant, that the complaint process was cumbersome and did not work properly.  It has now been substantially revised.  In 2009 Cafcass were simply not resourced adequately to do their primary jobs in relation to children and their families adequately and timeously.  It is hardly surprising, though it is entirely unsatisfactory and reprehensible, that they prioritised their primary duties rather than the complaints process.  The delay was not caused by malice or by the fault of any individual, but by chronic under-resourcing.  The treatment of the Claimant's complaint appears to me to demonstrate maladministration of a high degree.  I did not understand Mr Weitzman to dissent from that conclusion.

92. On the 12th February 2009 the Claimant wrote to R's school asking, amongst other things, whether he was still seeing the school counsellor, which, in fact, he was.

93. On the 16th February the Claimant's solicitor told Mrs Ford that R had been referred to CAMHS but that they had not deemed it necessary to continue seeing R as he was receiving counselling at school.  It appears (see C1- C78) that Mrs Ford was not prepared to recommend interim contact as the position had not changed, on the basis that R was still receiving counselling.  Mrs Ford would still have been faced with the fact that the Court had ordered a section 7 report dealing with contact, wishes and feelings and the result of the Family Law Act fact finding hearing.  Thus, even if it had been the case that CAMHS were no longer seeing R, it would have made no difference to the situation at this stage.  In fact, as the letter from CAMHS of 26th February 2009 (C1-C20) makes clear, the position was not quite as clear as had been notified on the Claimant's behalf to Mrs Ford, in that R was still requesting a meeting with CAMHS alone.

94. On the 20th February 2009 the Claimant's amended application to claim residence was filed in the County Court and on the same day Cafcass received and noted the response (negative) from the police and social services to Cafcass' safeguarding enquiries.

95. On the 10th March the Claimant applied for a hearing to consider interim contact with R (D2-310).  In the same application he sought directions and the appointment of a guardian. At C1-C24 can be seen his grounds for making those applications.

96. It will be recalled that a date had been fixed for the hearing of the Family Law Act "fact finding" hearing to determine the rights and wrongs of the incident in October 2008.  That date was the 11th May and it was to be heard by District Judge Lee.  By a letter of the 11th March (D2-399) from the Court, the Court informed the parties that the Judge was away on that date and asked them if they would prefer an adjournment (to, I presume, listing the matter before another judge).

97. The Claimant's statement (D1- 84) indicates that he understood that his application for interim contact was to take place on the 6th April before District Judge Lee.  The Claimant indicates that at that hearing that judge was "confused" that the matter was listed for interim contact, viewing the listing as an administrative error and was reluctant to consider the background of the case.  According to the Claimant the judge said he accepted the mother's word that R was unwilling to see the Claimant and suggested the Family Law Act proceedings should be withdrawn upon an agreement by both parties to stay away from each other (no doubt a reference to cross undertakings).  The Claimant says he rejected that suggestion.  He was motivated to reject it because on the 3rd April he had been seriously attacked and hospitalised by strangers at a local bar and he suspected that the mother had been behind the attack.   While his reaction is, perhaps, understandable, that decision to reject cross undertakings made it inevitable that there would have to be a fact finding hearing in relation to the Family Law Act proceedings and the order of the 3rd February meant that the section 7 report was, explicitly, to await that hearing and its results. 

98. On the 17th March 2009 Mr Mellor of Cafcass, a very experienced and highly qualified officer, considered the file and noted that the Court had ordered a section 7 report which was more than simply a "wishes and feelings" report (he refers to para 5 of the February order) and notes that no date for a final hearing had yet been fixed (see the Cafcass log at D1-230).  On the 18th March 2009 (C1 – 25 and 26, D2-313) District Judge Lee ordered (I believe administratively, and probably as a result both of his being aware of the problem with the hearing on the 11th May and as a result of the Claimant's application for interim contact) that the Children Act application was set down for a separate date "for directions" on the 6th April 2009.  The Cafcass case management system notes this hearing (C1-C26).  The Claimant has written on his copy of the extract from the case management system  that Cafcass "knew there was an interim contact hearing 6th April".  In fact he is wrong about that, DJ Lee having listed the matter for directions.  That probably explains why the Claimant thinks that the judge was "confused" about the purpose of the hearing on the 6th April.  The judge had never intended to hear a contested interim contact application on the 6th April having already listed the Children Act matter on that day for directions.

99. There is no doubt that the Defendant knew of the 6th April hearing but I accept the evidence from the Defendant that it would not have been normal practice for a Cafcass officer to attend what was a directions hearing unless they had been ordered to attend, which they were not.  The Claimant argues that, had the complaints procedure proceeded with the speed at which the Defendant's rules indicated it should so that Mrs Ford's work had by then been reviewed  and an officer of Cafcass attended at the 6th April hearing, it may have been that the judge would have obtained advice more favourable to the Claimant and the judge might have made an order for interim contact.  I have already indicated that it is my judgment that Mrs Ford's conduct at the February hearing cannot be criticised and that the result of that hearing would have probably been no different if an FCA had been representing Cafcass so the question does not really arise but, as Judge Lee had actually listed the April hearing for directions, it seems to me highly improbable he would have made a positive ruling at the April hearing which would have cut across the agreed order of February.  Thus, on balance, even had the complaints procedure moved with proper speed I cannot possibly be satisfied it would have made any difference to the April hearing.

100. On the 6th April there was a hearing before District Judge Lee.  There is no order dated the 6th April available but there is a letter (C1-C34) from the Claimant's solicitors to him summarising what the Judge said, namely, that he gave directions that upon the mother agreeing to use her best endeavours to persuade R to attend contact it was noted that if, after 15 minutes she was unable to do so she would not be obliged to afford the Claimant contact.  That was, as Miss Driver accepted, effectively a "non-order" and, unsurprisingly, no contact came of it.  It rather confirms that the judge, having ordered that hearing to be a directions hearing, was not prepared to have a full interim contact hearing before the section 7 report was available.

101. If the mother had been able to persuade R to agree to contact the judge ordered that to take place at a neutral ground or supported centre as agreed between the parties.  There was a variation of the contact with the grandparents and the judge ordered that the FLA proceedings should be relisted for a day's hearing, on the first open date after the 11th May 2009, avoiding the 16th July to the 1st August 2009 with the Children Act proceedings re-listed for review on the first open date after the 26th May 2009.

102. I have indicated that there is no court order dated the 6th April but there is a court order of District Judge Lee dated and said to be made on the 20th April 2009 (C1-C35).  That order varies the order as reported by the Claimant's solicitors in the letter to which I have just referred and gives a date for the FLA proceedings on the 2nd November 2009 before DJ Lee.  It formally vacates the 11th May listing, which apparently clashed with a holiday of the judge.

103. The Claimant suggests that there is clear evidence that the Court had separated the Children Act hearings from the FLA hearing.  I am afraid that that is not clear to me from the letter and the order of the 20th April. Indeed I am afraid that it is not obvious to me that, with respect to him, Judge Lee had fully married the orders made on the 6th and 20th April with the agreed order of February 3rd.  The issue remained unclear of whether the Court still wanted the factual dispute between the parties resolved before making a decision on contact. 

104. Mr Mellor of the Defendant was confused by the order.  On 7th April 2009 (see Mellor's memo of 7/4 – C1-C32)  the Claimant's solicitor had rung him expressing anxiety "as the filing date is 26/5/09 but she has heard nothing (case unallocated)".  The solicitor's concern was understandable given the contents of her letter and her understanding of the order made by the Court on the 6th April but it does not seem that a formal order was actually sent to Cafcass as a result of the 6th April hearing.  Mr Mellor was a very careful witness and he was responsible for noting the various contact and actions of Cafcass in a log, exhibited to his statement.  That that log was properly and fully kept up is confirmed by its coinciding with the information from the letters from the Claimant's solicitor and it can be seen from D1-231 that Mr Mellor logged his speaking to the Claimant's solicitor on the 7th April and then, on 24/4/09 logs that he had read the order of the 20th April.  There is no reference to his seeing an order of 6th April and I am afraid I must conclude no formal court order for that date was ever produced. 

105. There is some evidence (see the Claimant's solicitor's letter to the mother's solicitors, C1-C56) that after the court hearing on the 6th April, both counsel who had attended wrote a note to the judge indicating he had not given a date for the Children Act hearing.  That letter indicates that the Claimant's solicitors believed there had been a disentangling of the Children Act and the FLA proceedings but that was not the view of the mother's solicitors who believed, on the contrary, that the proceedings had been consolidated and that the order of the 20th April was actually that which reflected what the judge had said on the 6th April (see note of 11/5/09 in Mellor's log at D1-232 and the letter of 6th May 2009 to Cafcass from the mother's solicitors D2-408).  Neither do the orders of the Court make that clear.

106. Thus, all Mr Mellor saw was that the hearing of 11/5 was vacated and the FLA hearing was fixed for the 2nd November.  Cafcass had been ordered on 3rd February to prepare a section 7 report dealing with contact, wishes and feelings and the result of the FLA proceedings.  He had been told by the Claimant's solicitor that the "filing date" was 26/5 but he had no order from the Court to that effect.  It is hardly surprising that he therefore wrote to the Court for clarification and, in fact, it is a measure of the care and general good sense and professionalism shown by Cafcass that he was proactive given that the Court itself might be criticised for leaving what Cafcass was supposed to do entirely up in the air.

107. He therefore wrote a letter dated 30th April 2009 to the Court Manager of W County Court asking for clarification of what Cafcass were expected to do.  That important letter can be found at C1-C37.  It is clear from the first paragraph that he accepted from the Claimant's solicitor that the Court on the 6th April had ordered the completed section 7 report to be filed and served by 26/5/09 and he indicated he regretted Cafcass could not comply.  That was partly because, as he explained in the letter, and as I accept was the case, Cafcass had real resource problems in London and also because, as the Court had patently not grappled with, the outcome of the fact finding exercise in the FLA proceedings on which Cafcass were invited to comment would not be known until 2nd November 2009.  He was tactfully pointing out to the Court that it had produced orders which were mutually inconsistent (indeed it seems to me that criticism of the Court could also have been made of their failure actually to draw up an order of the 6th April). He asked for an order of the 6th April and details of the directions made then.  He indicated that any report prepared in advance of the fact finding hearing could only be on an interim basis and that it was unlikely that a Cafcass officer would become available for appointment as a Children and Family Reporter until the week beginning 1st June in any event and thereafter would require a further 12 weeks to complete interim enquiries.

108. Again, I accept that Mr Mellor, who was a helpful and entirely truthful witness, was only stating what were the unfortunate facts at the time, namely that the resources made available to Cafcass in the London area were limited and, as a result, reporting officers were under enormous pressure and the time lag for reports was as he stated.  Cafcass simply cannot be blamed or said to be negligent where, as I accept was the case, they simply did not have sufficient resources or staff to cope with the demands of the Courts any more rapidly than he indicated was the case.  Moreover, he cannot be blamed for not reacting more quickly to different dates being ordered by the Court where the Court had not sent the order to Cafcass.  Again I indicate that the complaint proceedings and their slow progress were, in my judgment, looking at the detailed evidence, absolutely irrelevant to what was happening in the Children Act and FLA proceedings.

109.  In his conclusion in that letter Mr Mellor asked the Court for further directions.  That was exactly the right thing to do.  The Court had left the matter completely unclear.  Further directions were necessary.  They were never given.

110. By a letter of the 6th May (C1-C40) the Claimant's solicitors told the Claimant the disappointing news that they had not received a listing date from the Court for the Children Act proceedings and that the mother had refused his request for contact.

111. He had not seen his son since October 2008.   It is true that the complaint proceedings had been progressing very slowly despite his making every effort, including through his MP, to speed them up.  As I have indicated, even if they had been concluded in his favour, I do not believe they would have had any effect on the Court proceedings.  The Claimant is convinced of the contrary and I suspect nothing I can say will persuade him differently.  I am prepared to accept the delays in the complaints process did have a depressing effect on him.  However, far more depressing was the slow processes of the Court, to some extent contributed to by the lack of Cafcass resources to provide more timely reports.  It is clear the Court and the lawyers representing parties in private law family proceedings recognised Cafcass' difficulties.  As I have repeatedly said, Cafcass cannot be blamed for being under-resourced.

112. What then happened was that the Claimant lost heart and instructed his solicitors to withdraw his applications for contact to his son.  His email setting out his reasons for that is at C1- C41.  He summarises his reasons as "The system does not work.  The Family Law Courts are ineffective. The rule of Law is not respected and the Family law system has failed my son and my family".  The whole email bears reading in full.  It was clearly heartfelt and, as it was for his solicitor's benefit, I cannot think it was other than a true reflection of his beliefs and feelings at that time.

113. He considered Cafcass to be inefficient, biased and ineffective.  I am afraid that I do not accept he was correct in levelling those criticisms at the individuals who, in Cafcass, had been involved in his case. Neither Mrs Ford nor Mr Mellor were either inefficient, biased or ineffective but they were working under resource constraints.  They were attempting to comply as best they could with orders of the Courts which, frankly, could have been more consistent.

114. It should also be noted that, in that email, he strongly criticises the mother for "manipulating" the proceedings and his son. Whether that is true or not has never been determined but there is no doubt that the main reason for his not having contact with his son after October 2008 was the stance and beliefs of the mother, which may or may not have influenced his son. Cafcass were never in a position to alter the mother's stance or beliefs.

115. The Claimant told me in oral evidence, and I accept, that at this stage he was at the end of his tether.

116. At the end of the email he said:

"In order to protect my son, myself and my family from any further harm and heartache I wish to withdraw from the Residency and contact proceedings immediately .

For now I wish to pursue the "non molestation" order with a hope to protect my wife, daughters and myself from any future harm, although I now have little faith that we will be able to achieve this."

117. In fact, his solicitors attempted to persuade him to change his mind and did not immediately act on his instructions.

118. There is, in the Claimant's timeline bundle, continuing evidence of his efforts to push along the complaints process.  I note in particular an email from Mr. David Moy, the then Cafcass Head of Customer Services and Quality (CSQ) to Peter Coupe, the head of the Croydon branch of Cafcass who were the branch responsible for the Claimant's case, expressing his serious concern about the lack of first stage complaints process responses in the Croydon office.

119. Ultimately, the Claimant's solicitors did write, in a letter of 15th May 2009, to the Court withdrawing his application for residence and contact (D2-409).  His solicitors make the same complaints about Cafcass and Mrs Ford as the Claimant did in his email to his solicitors.  They asked for the Court to terminate the matter by agreement without a further hearing.  There was some correspondence between the solicitors as to the status of the FLA proceedings and by letter of 21st May 2009 (C1-C71) the Claimant's solicitors noted that there had been, very belatedly by the mother, a cross application for an injunction.  They confirmed that the FLA proceedings were the only extant proceedings and indicated that they hoped the Court's silence in relation to the letter of withdrawal meant the Court's acceptance of that withdrawal.

120. In fact, as the Claimant's solicitors indicated to him in a letter of 17th July 2009 (C1-C73) the court had contacted them on the 23rd June 2009 advising that the Judge required a formal application to withdraw and that they had filed that application on 26th June 2009 and on the 17th August 2009 District Judge Lee ordered that the Claimant had permission to withdraw his application for contact and residence.

121. The Claimant withdrew his application for residence and contact while legally represented and against the advice of his solicitors.  While his perception of the attitude of Mrs Ford and the inefficiency of Cafcass was a contributory factor in his decision, it was, in the main, caused by the intransigence of the mother and the delays that were in 2009 inherent in the family law system as a result of the sheer pressure of work and limitation of resources.  He did not thereafter renew his application for contact as he believed it was hopeless and that the lapse of time was such that his son might be harmed by renewal of contact.  No delay in the complaints process thereafter nor any action or inaction by Cafcass could possibly, after he had lodged his application to withdraw and had been allowed to do so, have made any contribution to his continuing lack of contact with his son.

122. I should, however, for completeness sake indicate that, after his complaint was rejected in the first stage of the complaints process (see Jackie McGowan's decision letter of 13th May 2009 C1-C51) the independent investigator Sally Butter upheld fully 2 of his 4 complaints, partly upheld one and rejected another.  I have already made comment on her report which was also accepted by the Independent Observer appointed as part of the stage 2 process.  The full report of Butter is at C1- C125 and the Independent Observer's report is at C142.

123. However it was not the complete report of Sally Butter that the Claimant was sent on the 27th October by Mr Peter Coupe, the head of the Croydon branch which branch was criticised by Sally Butter, but an expurgated report which can be found at page 124.  The report was edited and its main findings set out in a letter of 23rd October 2009 (C1-C119) purportedly written by Halcyon Hamilton, Head of Service, obviously having been cut and pasted into that letter.  The reasons following the upholding or dismissal of the complaints are set out but the process of evidence, which Butter set out in detail in her report and which contains several pointed criticisms of Cafcass, was not.  Indeed although Halcyon Hamilton, who had been appointed the independent adjudicator, being a Head of Service from another area, refers to the Butter report, that report was never sent by Cafcass to the Claimant.  A very careful reading of the letter would probably have revealed to the Claimant that the letter was not the report but he did not realise that and I do not think he can be heavily blamed for that.  There is no indication in the letter that extracts only had been taken from the report.  The Claimant only saw the full report, I accept from his evidence, when he studied disclosure by the Defendant in this action.  That was well in advance of the trial.

124. Disclosure by list was given by the Defendant on 22nd August 2013.  The Claimant did not immediately seek copies of any of the documents.  The Defendant through its Legal Services department fairly indicated to him in a letter of 25th October 2013 that he could have copies.  I do not precisely know when he received a copy of the Butter report.

125.  It took him some time to appreciate the significance of having only been given an edited account. He applied for a witness summons for the attendance of Halcyon Hamilton and the Defendant applied for an order to set aside that summons on the grounds that she had no evidence to give that was relevant to the issues before the court.  That matter and other procedural matters came before Master Yoxall on the 17th February this year.  The Defendant argued that the Claimant's claim, although it included a claim for misfeasance in public office, contained no complaint about the Hamilton letter or, as the Claimant was by that hearing alleging, a deliberate cover up by the Defendant of the Butter report.  Master Yoxall apparently explained to the Claimant that if he wanted to pursue the allegation it would be necessary for him to amend his Particulars of Claim.  The Claimant misunderstood what the Master said and thought he simply had to produce an amended Particulars of Claim.  He was therefore obliged to make an application to amend his Particulars of Claim on the first day of the trial before me.  He had not (perfectly understandably) made the amendments in red to the original particulars but drafted an entirely new Particulars of Claim (C1 – A1) which was voluminous and clearly opened up a much wider allegation of negligence and misfeasance based on the second stage of the complaints process and the "cover up" by Cafcass.

126. I heard his application and rejected it for reasons I gave in an extempore judgment at the time.  In my judgment, in brief, the wholesale amendment could not in justice to the Defendant be allowed without an adjournment of the trial.

127. During the course of the trial the Claimant explained his complaint about the Hamilton adjudication letter and alleged that "metadata" embedded in the computer electronic file of the Hamilton letter suggested that Peter Coupe had, in fact, either written or amended the Hamilton letter.  I have had no expert evidence about that.  The Claimant has given me evidence about it, as a non expert but computer literate person.  I am sufficiently computer literate to have understood his point – the metadata showed Peter Coupe to be the last author of the document – but I am not, on the evidence, satisfied that Peter Coupe did more than save that document or print it before sending it as an email attachment to the Claimant.

128. As I was being asked in the trial to consider making very adverse findings against Mr Coupe, I encouraged the Defendant to trace and call him, which, by good fortune, they were able to do and I heard him give evidence.  Understandably he had little memory of his involvement.  He did not know why the full Butter report had not been given to the Claimant and he thought it may have been oversight.  He denied making any significant alteration to the Hamilton letter though he said it was possible he might have corrected names in it though he could not remember doing so.

129. I did not hear from Halcyon Hamilton.

130. I am not satisfied that Peter Coupe was responsible for writing the Hamilton letter nor for making any significant amendments to it.

131. However he was involved in the process of appointment of Hamilton as an adjudicator and he was, in October 2009 being pressed by Abigail Roberts, of Customer Service and Quality Support of Cafcass, to indicate who the independent adjudicator was.  In and email of the 23rd October he wrote to Ms Roberts:

"The adjudicator is Halcyon Hamilton.  She has already adjudicated and I have sent Mr. F-D some dates to meet me. I need to take advice as to how much of the investigation document we send to him"

132. There was no response to that email and in his statement Mr Coupe says he cannot recall why he made that query and suspected he simply needed to check out the procedure. 

133. Given that I did not hear from Halcyon Hamilton I must be cautious about drawing conclusions strongly adverse to her or the Defendant about why her letter contained only extracts from the Butter report and why that report was not sent to the Claimant.  The fact it was not sent caused no loss whatsoever to the Claimant.  Even if the decision was made deliberately and deceitfully, it would not take his claim for negligence and misfeasance any further.  However, as it stands the evidence is such that it is entirely comprehensible why the Claimant should firmly believe that Mr Coupe and another or others in the Defendant organisation deliberately covered up the full Butter report because it contained far more criticism of them than the expurgated version did. I am unable on the evidence to go that far.  I am able to say, however, that the failure to give him the full report and the sending of a letter which did not clearly indicate that it contained only extracts from the report undoubtedly were misleading to him, constitutes serious maladministration by Cafcass, on top of the truly dreadful delays in the complaints process, added to his unhappiness and was extremely reprehensible.

134. Equally firmly, I am quite clear that that maladministration does not result in his being able to claim any damages in this action.

135. Ultimately the third stage in the complaints process led to a finding in his favour upholding the Butter findings and a letter of apology by Mr Douglas, the Chief Executive of Cafcass (D2-499) offering him £1,000 by way of redress.  The Claimant regarded the offer as insulting and derisory and rejected it.  The offer has never been withdrawn.

136. I have set out in some detail the history of this matter and now turn to the law.

137. The Children and Family Court Advisory and Support Service or Cafcass was established as a body corporate by section 11 of the Criminal Justice and Court Services Act 2000.

138. Section 12 (1) of the Act specifies that:

"In respect of family proceedings in which the welfare of children is or may be in question, it is a function of the service to – 

(a) safeguard and promote the welfare of the children;

(b) give advice to any court about any application made to it in such proceedings;

(c) make provision for the children to be represented in such proceedings;

(d) provide information, advice and other support for the children and their families."

139.  Section 12(2) requires the Service to make provision as well for the performance of any functions conferred on officers of the service by the 2000 act or by any other enactment.

140. Section 7 of the Children Act 1989 provides for the service to prepare reports for the court pursuant to its section 12 duty when the court is considering any question with respect to children under the Children Act which reports should be about such matters relating to the welfare of the child as are required to be dealt with in the report.

141. Schedule 2 of the 2000 act makes provision about the constitution of the service, its powers and other matters relating to it.

142. Paragraph 9(1) of the schedule provides that functions and other powers of the service, and functions of any officer of the service must be performed in accordance with any directions given by the Lord Chancellor and paragraph 9(2) specifies that those directions may make provision for the purpose of ensuring that the services provided are of appropriate quality and meet appropriate standards.

143. Paragraph 15 imposes on the service an obligation to make and publicise a scheme for dealing with complaints made by or on behalf of prescribed persons in relation to the performance by the service and its officers of its functions.

144. Thus, it can be seen that the public duties imposed on the service by the 2000 Act are child centred but also specifically impose a duty to advise the court. There is also a duty to provide information, advice and other support for the families of children.

145. In R (R and others (Minors)) v CAFCASS [2012) EWCA Civ. 853 the Court of Appeal held that section 12 (1) (c) (2) of the 2000 Act imposed a general public law duty on the service to ensure children were represented in care proceedings but did not impose a specific duty either to ensure a specific child was represented or to ensure representation was achieved within a particular timescale. It must follow from that that in relation to the more limited duties imposed on the service in relation to the families of children, there can be no public duty owed by the service to an individual father of a child in proceedings where the service is involved.

146.  The Claimant contends that the service did, however, owe him a common law duty of care, breach of which entitles him to claim damages against the service.

147. It is clearly right that, as the Defendant contends, as the Claimant's allegations are brought in the context of family proceedings under the Children Act 1989 (the concurrent FLA proceedings not affecting the position, in my judgment) the interests of R were paramount (section 1 (1) of the 1989 Act).  That is the important context for the performance of the Defendant's duties under section 12.  It was, of course, entirely possible that the interests of R would conflict with either the interests of the Claimant or of R's mother.

148. Did the Defendant owe the Claimant a common law duty of care.  In Caparo Industries PLC v Dickman and others [1990] 2 AC 605 the House of Lords reviewed the development of the law of negligence and the circumstances in which the courts should impose a duty of care.  Summarising the judgment of Lord Bridge, with whom, on the general issue, the majority of their Lordships agreed, a duty of care would arise where there was foreseeability of damage, a relationship of proximity and where the circumstances were such that it would be fair, just and reasonable to impose a duty of care. 

149. That test was considered both by the Court of Appeal and the House of Lords in JD v East Berks and others [2003] EWCA Civ 1151.  The issue there was whether doctors and social workers owed a duty of care to children and their parents when such professionals were considering accusations against parents of abuse of a child.

150. The issue of foreseeability was not in dispute in the cases before the courts but it was disputed that there was a relationship of sufficient proximity between the professionals and the parents and also it was argued that the circumstances were such that it would not be fair, just and reasonable to impose a duty of care on the professionals.

151. While the Court of Appeal held that the professionals did owe a duty of care to the children it rejected the argument that a duty of care was owed to the child.  Lord Phillips:

152. "[86] The position in relation to the parent is very different. Where the issue is whether a child should be removed from the parents, the best interests of the child may lead to the answer yes or no. The Strasbourg cases demonstrate that failure to remove a child from the parents can as readily give rise to a valid claim by the child as a decision to remove the child. The same is not true of the parents' position. It will always be in the parents' interests that the child should not be removed. Thus the child's interests are in potential conflict with the interests of the parents. In view of this, we consider that there are cogent reasons of public policy for concluding that, where child care decisions are being taken, no common law duty of care should be owed to the parents. Our reasoning in reaching this conclusion is supported by that of the Privy Council in B v Attorney-General.

[87] For the above reasons, where consideration is being given to whether the suspicion of child abuse justifies taking proceedings to remove a child from the parents, while a duty of care can be owed to the child, no common law duty of care is owed to the parents."

153. The decision of the Court of Appeal was upheld by the House of Lords (D v East Berkshire Community Health Trust NHS Trust and others [2005] 2 AC 373.).   Lord Nicholls encapsulated the reasoning of the majority at paragraph 85:

"In my view the Court of Appeal reached the right conclusion on the issue arising in the present cases. Ultimately the factor which persuades me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled "conflict of interest". A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel "quite right", a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent."

154. Later, in his judgment, at paragraph 90, Lord Nicholls, indicated:

"In principle the appropriate level of protection for a parent suspected of abusing his child is that clinical and other investigations must be conducted in good faith. This affords suspected parents a similar level of protection to that afforded generally to persons suspected of committing crimes."

155. There can be no doubt that, despite the fact that section 12 (1) of the CJCSA 2000 does not set out a hierarchy of the public duties owed by the Defendant, section 1 (1) of the Children Act 1989 makes it very clear that the Defendant's primary duty in private law disputes over residence and contact is owed to the child just as it is the Court's primary duty. In this particular case, it seems to me very obvious that there was a very real conflict between the interests of R and those of each of his parents.  There was an unresolved factual dispute between them.  There were cross allegations of violence.  The parents were at complete loggerheads over contact with the child and the dispute between them was extremely acrimonious.

156. There was also a real risk of emotional and psychological harm to the child who was receiving counselling at school and had been referred to CAMHS. 

157. The duty imposed on Cafcass to safeguard and promote the welfare of R and, intrinsically tied up with that duty, its duty to give advice to the court was potentially in conflict with its duty to give advice, information and other support to the parents of the child and to the Claimant in particular.  Mr. Weitzman is correct to submit that there was, in this case, no community of interest between the parents and the child, as there was in Merthyr Tydfil CBC v C [2010] EWHC 62, which is, thus, distinguishable from this case on its own, quite exceptional facts.

158. Cafcass had, to comply with its duty under section 12 and to comply with the extant Practice Directions, to assess the risks to the child of contact by the Claimant.  The risks, which, in this case were of psychological and emotional damage were, potentially, from either or both parents and from their dispute with each other.  It would entirely hamper Cafcass in its primary duty to the child if it owed the parents or either of them a duty of care.

159. Additionally, Cafcass owed equal public duties to each parent and those duties were, here, diametrically opposite.

160. In my judgment, therefore, it is not, in this case, fair, just and reasonable to impose a duty of care on Cafcass towards the Claimant.

161. The duty that is pleaded in the Particulars of Claim in paragraph 26 is derived from section 12 of the 2000 Act, namely, to give appropriate advice and support in respect of the proceedings centred around the Family Court concerning R.  It is not specifically a duty of care to the Claimant in relation to the complaint proceedings.  Nor, indeed, independently of the Family Court proceedings, can I see that the conduct of those proceedings were foreseeably likely to cause any claimable loss to the Claimant if conducted negligently.  In particular xi of the Particulars of Negligence, the failure "to investigate the Claimant's complaint in a timeous manner despite it being clear that the matter was urgent in circumstances where the Claimant was being denied access to his son in the interim period" is, thus, specifically directed to the impact it was alleged to have on the primary duty in relation to the Family Court proceedings.  I have already indicated that I consider that the early resolution of the complaint proceedings would have had no impact on the Family Court proceedings.

162. Even if I were wrong about the existence of a duty of care, the test of whether the Defendant had through its officers acted negligently must be the Bolam test, of whether their actions fell outside the standards to be expected of a reasonable body of similar practitioners.  It is appropriate for me to have regard to the resources available to Cafcass at the time.

163. Looking, therefore, at the specific allegations, it is simply not correct that Mrs Ford or Cafcass failed to do basic checks into the background of the case.  It was entirely appropriate to allow the Business Support unit to do the safeguarding checks, which they did.  It was not necessary to look at the 2004 report which led to a contact order in the Claimant's favour as that was out of date and the real issue was what happened in October and how it had affected the child.

164. It was not normal practice and was wholly impracticable for a wishes and feelings report to be done in advance of the hearing on the 3rd February 2009 and that was not suggested by the solicitors or barrister representing the Claimant.

165. I do not accept Mrs Ford's approach was other than impartial or open minded.  That is reasonably obvious from her contemporaneous notes and, in any event, the Claimant was represented by an experienced barrister, who recognised that the mother was taking an intransigent position and that the Court was almost certainly not going to make a contact order in the circumstances.  The fact there was an order by consent, in my judgment, robs any alleged bias by Mrs Ford of any causative effect.  She had not accepted the mother's word; she merely recorded accurately that the mother would not change her position.

166. Mrs Ford was accurately told that there had been a referral to CAMHS.  That was not the pivotal point on the 3rd February.  It was not the practice and, indeed, was likely to be contrary to the best interests of R, for him to be brought to court and, in any event, the court had no time on February 3rd for a contested hearing.

167. I accept that Mrs Ford may have told the Claimant that the mother would not grant contact, that there was a need for a section 7 report and that it was unlikely the court would, in the circumstances give contact and that a section 7 report would take 12 – 16 weeks.  That was all accurate and no more than his counsel would and should have told him.  Telling him that was not acting in a partial way.  He was represented by an experienced barrister.

168. I accept the evidence of Mrs Ford that she did not advise the judge to order no contact.  There is really no satisfactory evidence to the contrary.

169. I do not consider it was for Mrs Ford to advise the judge about interim contact.  Miss Driver was perfectly capable of arguing that, without Mrs Ford advising it and she did not have instructions to do so because the Claimant accepted the unhappy position that the mother would not grant contact and that the court could not at that hearing resolve what had happened in October.

170. I do accept that there was a negligent failure to investigate the Claimant's complaint but it had no impact on the Family Court proceedings. 

171. Cafcass would have interviewed R and assessed if he really wished to have contact in the process of preparation of the section 7 report.  However the court did not set a date for the Children Act hearing and then made conflicting orders. It did not respond to Mr Mellor's request for further directions and then the Claimant withdrew his application.

172. The Defendant did enquire what the position was with CAMHS.

173. The Defendant was only ordered by the Court to provide evidence of the wishes and feelings of the child in a full section 7 report as set out in paragraph 5 of the February order. 

174. Cafcass were not required to attend or to do anything for the 6th April hearing.  Particulars xvi and xvii add nothing further.  Apart from its negligence in dealing with the Claimant's complaint, which had no impact on the contact proceedings I reject the allegations that the Defendant or its officers acted negligently.

175. Additionally, it has been clear throughout the proceedings that the Claimant can establish no actionable loss.  He accepted in cross examination that he did not intend to commence further proceedings to re-establish contact with R and, thus, there is no financial claim arising from that.  He has lost contact with R but there is no psychiatric injury suffered by the Claimant and he cannot through an action in negligence seek compensation for upset and hurt to feelings.  Neither can he claim compensation for the loss of a family relationship (Hamilton-Jones v David and Snape (a firm) [2004] 1 WLR 924).

176. The Claimant, in the alternative, claims misfeasance in public office, relying on the very same particulars as support the claim in negligence.  The necessity for bad faith to be established by the Claimant to support such a claim was recognised by Lord Nicholl in the passage from D that I have already cited.  The requirements for a successful claim in misfeasance in public office were identified in Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1.  At paragraph 191 Lord Steyn said:

"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."

177. I reject completely any suggestion that Mrs Ford, or any of the officers of Cafcass involved with the Family Court proceedings acted with malice, bad faith or for an improper or ulterior motive, nor did any of them act in any way without an honest belief that they were acting lawfully.  The conduct of Cafcass was always directed to ensuring that the best interests of R were achieved and, on a secondary level, to attempt to achieve a resolution of the dispute between the mother and father.  This is a case as far distant from misfeasance in public office as it is possible to get and I am surprised that the Defendant did not apply to strike out the allegation in the Particulars of Claim.

178. The Claimant finally claims damages for breach of his article 8 rights.

179. In JD in the Court of Appeal, the Court considered the case of TP and KM v United Kingdom [2001] 2 FLR 549 a claim where a mother and child claimed damages for negligence against a local authority for negligence in investigating an allegation of child abuse resulting in the child being removed from the mother's care and both sustaining psychiatric damage.  The mother's claim was struck out.  She eventually appealed to the Strasbourg court. It was clear that in both cases, as is the case here, that the right to a family life was engaged.  The issue was whether the interference with that qualified right could be justified in accordance with art 8(2), which provides:

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

180. The Court of Appeal in JD considered the reasoning of the Strasbourg court in finding that the interference with the article 8 right was justified and held, at para 66 "that the test applied by the Court approximates to that which would be appropriate when considering whether there had been a breach of a duty of care."

181. As the Court of Appeal held, in R (R and others (Minors)) v CAFCASS (see ante), it is the Court's primary duty to ensure, through applying the relevant legislation, that the article 8 rights of the Claimant, the child and his mother were not breached.  There is no doubt that Cafcass also had a duty to ensure the article 8 rights of the Claimant were not breached and it is conceivable that, had they acted negligently in those proceedings, the Claimant might have been able to argue a breach of his article 8 rights which was caused by them.  However they did not act negligently as I have already found and the consent order and the Court's overall control of the proceedings meant, in my judgment, that it is not arguable that any actions of the Defendant caused a breach of the Claimant's article 8 rights.  In any event, it could only be argued that there was a causative breach up to the date when the Claimant withdrew his application for contact. 

182. I therefore find that the Claimant's claims for damages against the Defendant are not well founded and I dismiss them.  Had I found that the Claimant's article 8 rights had been breached I consider that the case of Venema v The Netherlands [2003] FLR 552 is a useful comparator.  The maximum period of loss of contact is just over 3 months and I judge that the sum of £3,500 would be just satisfaction for any breach.  However, as I find no breach, I award no damages and I dismiss the Claimant's claim.