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P (A Child) [2015] EWCA Civ 1428

Appeal against a child arrangements order, whereby contact between the mother and her 18 months old child was limited to indirect contact only.

The child, H, had been born to the mother in China as a result of an extra-marital affair, which occurred whilst the married father visited the country for work. The father told his wife, the step mother, about the affair and the pregnancy and a decision was reached between the three adults that H would go to England with her father and be brought up by him and the step mother in this country.  The mother remained living in China.

The mother thereafter struggled with the decision and developed a strong hatred for the step mother. The father issued proceedings and applied for a child arrangements order to regularise the arrangements for H. A Cafcass section 7 report recommended that direct contact took place between the mother and H once a year, alternating between China and the UK.

Between that Cafcass report and the final hearing, the situation further deteriorated, with the mother sending threats to the father by email and eventually stating that she wished H to return to live with her in China if the father would not agree to her contact proposals. Importantly, at an interim hearing, the mother made a threat to kill the step mother and also to pass on to H that the step mother had wanted her to be aborted.

At the final hearing, Mr Justice Keehan made an order for indirect contact only between H and the mother in light of the impact that the mother's behaviour and views would have on H's welfare.

The mother appealed on the grounds:

1. that the judge did not adequately articulate his reasons for refusing direct contact by reference to the welfare check list and by reference to the Article 8 rights of both mother and child;

2. that the judge failed to consider alternatives which could be put in place in order to mitigate the risk he found to be posed to H by the mother.

The Court of Appeal unanimously dismissed the appeal, holding that the judge had summarised the proper legal approach succinctly and unimpeachably and had specifically referred to safeguards he had considered, but rejected. 

Summary by Millicent Benson, barrister, 1 King's Bench Walk
________________________

B4/2015/1686
Neutral Citation Number: [2015] EWCA Civ 1428

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MR JUSTICE KEEHAN)

Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 24th November 2015

B E F O R E:

LORD JUSTICE LONGMORE  
LORD JUSTICE CHRISTOPHER CLARKE 
LADY JUSTICE KING
 
 
IN THE MATTER OF
P (A CHILD)


Computer Aided Transcript of the Stenograph notes of
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Tel No:  020 7404 1400  Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 
 
Miss B Jackson appeared (instructed by Bar Pro Bono Unit) on behalf of the Applicant Mother
Ms A Howard
(instructed by Brindley, Twist, Tafft & James LLP) appeared on behalf of the Respondent Father

J U D G M E N T
(Approved)
 
Crown copyright©

1. LADY JUSTICE KING:  This is the appellant mother's appeal against a child arrangements order made by Keehan J on 15th April 2015, whereby he limited contact between the mother and her child, "H", who was born on 26th May 2014 and is 18 months' old, to indirect contact only.

2. The issue before the court is whether the judge was wrong in limiting contact in such a way in circumstances where, immediately prior to the hearing, the father had consented to, and the CAFCASS officer recommended, direct contact to take place between the mother and H once a year alternating between China, where the mother lives, and the UK, where H lives with her father and step mother.

Background

3. The mother is Chinese and the father is British.  The father has at all material times been married to "YP", the step mother.  The father and mother met in China whilst the father was working in that country.  The relationship between them as colleagues developed into an extra marital affair during the course of which the mother became pregnant with H.  The father told the step mother about the affair and the pregnancy and a decision was reached between the three adults that after the birth of H, H would go to England with her father and be brought up by him and the step mother in this country. 

4. In accordance with the agreement, H travelled to England with her father on 25th July 2014, when she was nine weeks old.  Since that time she has lived with the father and step mother, with the father providing the mother with regular updates as to her welfare and development. 

5. Those bald words of course do nothing to reflect the heartache and distress for all concerned at that time; for the father's guilt, the step mother's sense of betrayal and the mother's distress at reaching the decision which she felt to be right for her then unborn second child, in circumstances where she already had a nine year old daughter to care for as a single parent.

6. Prior to the decisions being made, there had been discussions about the various options, which included consideration of terminating the pregnancy. 

7. Unhappily, all the mother's dealings with the father and the courts have since that time been coloured by her visceral hatred of the step mother.  The mother is unconstrained about her feelings, which she says stem from what she describes as the step mother's efforts to make her "kill" her child (by which she means to have had an abortion).  This hatred    and I use the word advisedly    has manifested itself not only in the writing of innumerable e mails, abusive to the step mother and critical of the care given to H, but in the mother's opposition to the step mother having parental responsibility for H. Notwithstanding that she is now her primary carer and has stopped working to look after her. Further she has insisted that as part of the arrangements for H to have contact in China, it was to be "non negotiable" that the step mother would not travel to Asia with H, notwithstanding that this small child has not been apart from her step mother since she was a matter of weeks old.

8. On 29th July 2014 the father sensibly applied for a child arrangements order to regularise the position now that H was in this country.  The proceedings, which initially seemed likely to result in a consent order in the county court, were complicated by difficulties CAFCASS had in completing the safeguarding checks necessary in China, together with the mother's determination that the step mother should not have parental responsibility for H. The mother now made a raft of allegations regarding the father and step mother personally and in relation to their care of H.  As a consequence, the court ordered the preparation of a section 7 welfare report, which report was prepared by a CAFCASS officer, Samantha Petripes, dated 30th June 2015.

9. The CAFCASS officer interviewed the father and step mother and saw H at home, she also interviewed the mother by telephone.  The report recorded the first class care H was receiving from the father and step mother.  The CAFCASS officer expressed the view that, in relation to the mother's allegations against the step mother and particularly in relation to her having "wished to kill the child", the mother had at a time of high emotions, misconstrued some comments that had been made by the step-mother. 

10. The CAFCASS officer was hopeful that the mother might be able to move on, as at that time of the preparation of the report the mother seemed to be accepting that it would be in H's best interests for the step mother to have parental responsibility, regardless of her personal feelings and anger towards her.  Each of the allegations made by the mother were conscientiously followed up and investigated by the CAFCASS officer.  Whilst the mother is now highly critical of the CAFCASS officer, a reading of her report shows considerable compassion for the mother's situation, referring, for example, to the "very difficult and heartbreaking" decisions she had to make.

11. Following receipt of the CAFCASS reports, attempts were made by the father to reach agreement with the mother as to the form of direct contact in China.  He suggested it should take place for a week, during which time contact was to be built up gradually with the step mother present.  The mother's response was to inform the court and CAFCASS that she no longer agreed to H living with the father.

12. In the ensuing weeks and months it became increasingly clear that the CAFCASS officer's hopes that the mother would come to term with the fact that her child was now being cared for by another woman were not to be borne out.  The mother sent a series of e mails to the father which were particularly abusive and threatening towards the step mother.  She demanded a two week holiday should take place in China with the father when they could be with H alone and they could be "real parents" to her and that the step mother should not go to Asia or she would "beat her" in front of H.  The father's attempts to placate the mother were to no avail and the barrage of threatening e mails continued.  Eventually, on 27th February 2015 the case was transferred to the High Court as the mother had confirmed to the court that she now wished H to return to China to live with her.

13. The matter first came on before Keehan J on 11th March 2015, the mother representing herself by video link.  Her English, whilst not being perfect, is good. 

14. During the course of that hearing the judge asked the mother what her position was.  She stated a number of things, including: (i) she would agree to a final order for H to remain in the UK only if her contact stipulations were met, otherwise she would not agree and would seek for the child to be returned to China; (ii) she made a threat in open court to kill the step mother and said that she would attack her if she saw her; (iii) she made abusive comments about the father and step mother and questioned their parenting capacity and care of H; (iv) she said that she would make clear to H her feelings of hatred towards the step mother if she was able to see her, and would also make her feelings clear to H as she was growing up. The mother could see no harm in saying such things. The mother also said that she would tell H that her father and the step mother had tried to have her killed; (v) she would not agree to the step mother being present at any contact session and did not agree with the recommendation of the CAFCASS officer that it would greatly assist H in any supervised contact sessions for the step mother to be present.

15. As a consequence of the mother's trenchant stance, the judge listed the matter for a final hearing.  In the interval between the directions hearing and the final hearing there was another flood of correspondence.  The mother complained officially and otherwise about the judge, the CAFCASS officer and the father's solicitors.  She continued to make threats and accusations against the father, the step mother and the father's family.  She described the step mother in one e mail as "the BITCH I hate most in this universe". 

16. Unhappily, by the time the hearing came on the mother's behaviour (which not only included the direct threats to kill the step mother, but also the endless, irrational, offensive and threatening e mails), had finally led both father and CAFCASS officer to conclude that direct contact was not in H's best interests and that for the time being indirect contact only should take place.  It was against this backdrop that the judge conducted the hearing on 14th and 15th April, with the mother appearing by telephone, with the benefit this time of an interpreter.

The judgment

17. Inevitably, the judge's judgment turned upon the impact the mother's behaviour and views would have on the welfare of H.  To this end the mother's abuse and threats were significant, but so too was the fact that a regular threat made by the mother was that she would seek the permanent return to China of H if the father did not agree with her "non negotiable proposals" for contact in China as described above. 

18. The judge therefore had to consider what impact his assessment of the mother, made by him on reading the papers and having seen her in the witness box, would have on the decisions he had to make about contact.  It is in relation to this aspect of his judgment that the mother now appeals and, in respect of which Ryder LJ gave permission to appeal.  It is submitted on the mother's behalf that the judge's decision to allow only indirect contact was "unjust because of a serious procedural or other irregularity in the lower court".

19. The court has been assisted by skeleton arguments and representation today, on behalf of the mother by Miss Jackson, who appears pro bono for which the court is most grateful, and also by skeleton argument filed by Ms Howard, who does not appear pro bono today but I think has done so in the past, for which the court is also grateful.  Ms Howard had the benefit of appearing in the court below.

20. The grounds fall conveniently into two topics:

(i) 21. whether the judge adequately articulated his reasons for refusing direct contact by reference to the welfare check list found at section 1(3) of the Children Act 1989 and by reference to an evaluation of whether the inevitable interference in the Article 8 rights of both mother and child resulting from the order made were in the circumstances necessary and proportionate;

(ii) 22. whether the judge failed to consider alternatives which could be put in place in order to mitigate the risk he found to be posed to H by the mother, either through her likely behaviour at contact or by her retaining in or removing H to China.  This latter aspect was expanded in oral submission to include a submission that the judge had been wrong in failing properly to analyse whether contact could be supervised by a third party at a contact centre. 

23. Miss Jackson added a third ground in oral submissions, namely that the judge had failed to take into account the loss to H in being unable to have a direct relationship with her half sister in China.  That, it was accepted, was not an argument raised by the mother at trial, or indeed as a specific issue in the dozens of e mails she wrote.  With respect to Miss Jackson, this is a counsel generated argument and the judge cannot be said to have been wrong in failing to take into account a matter upon which none of the parties sought to rely at trial.

24. The judge set out in the first four paragraphs of his judgment a succinct and unimpeachable summary of the proper legal approach to the task before him.  This included consideration of the check list and the Convention rights of both parent and child and a direction to himself that direct contact is only to be prevented in the most extreme and rare cases and that a court must have regard to what safeguards can be put in place in order to reduce the risk of harm being suffered before, only then, concluding that direct contact is not in a child's best interests. 

25. Whilst acknowledging that the judge was not obliged to highlight each of the matters in the check list when giving reasons (H v H (Residence Order: Leave to Remove from the Jurisdiction) [1995] 1 FLR 529) Miss Jackson says the judge is nevertheless "under an obligation to perform a robust, explicit evaluation of the provisions of the welfare check list to demonstrate what weight he placed on the relevant factors and how he came to that decision". 

26. In my judgment, the judge did precisely this so far as was necessary on the facts of this case.  This was not a case requiring detailed evaluation of many and varied factors and circumstances given that, until shortly prior to the case being heard, it was accepted by all that H's welfare required her to have direct contact with the mother and the issue to be considered by the court was the form that it should take. 

27. The issue before the trial became whether, as a consequence only of the mother's behaviour over the previous months, culminating in a direct threat to kill the child's psychological mother made in front of the judge, it now became necessary for the court to draw back from what would otherwise have been the appropriate and common place outcome of a case of this nature, namely an order providing for such direct contact as could reasonably be accommodated given that the parties live on different continents. 

28. Having had the mother before him twice, and having read many of her e mails, the judge concluded at paragraph 13:

"I am satisfied on the basis of all the evidence that I have read and heard that the mother would be completely incapable of controlling her feelings against [the step mother].  I am entirely satisfied that if there were to be direct contact between the mother and [H] the mother would make extremely aggressive and negative comments about [the step mother].  I am in no doubt that she would convey to [H], now or in the future, that [the step mother] wanted her mother 'to kill her', that is to have an abortion.  I consider the risk of that happening in contact, whether in this country or in China, to be extremely high.  I am in no doubt that if such aggressive and abusive behaviour and such negative comments were made by the mother in front of [H] it would cause her significant emotional and psychological harm."

Further, in paragraph 15 the judge went on:

"I have considered what steps could be taken, if any, to reduce or ameliorate the risks posed by the mother.  I regret that such is the depth of the mother's negative feelings towards [the step mother] and the mother is such a volatile individual, who cannot control her emotions, especially in relation to this matter, she would inevitably make abusive comments about [the step mother] in front of [H] and/or would instigate verbal or physical arguments with [the father] or [the step mother].  I can see no safeguards that could be put in place to reduce the risk of harm that I have assessed to a reasonable or acceptable level.  I regret that the mother's suggestion that [the father] could take [H] to China provides no reassurance to me whatsoever (a) in light of my assessment of mother, and (b) in the light of the fact that China is a non Hague Convention country."

29. It can be seen therefore that the overwhelming feature of the case was the risk presented to the child's welfare by the mother's behaviour.  That the welfare checklist was firmly in the judge's mind is evidenced by the fact that, had the judge made those observations specifically with reference to the welfare checklist, those factors I have just outlined would have been found in section 1(3)(e) any harm which he/she has suffered or is at risk of suffering", and in section 1(3)(f), "how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs".  It should be noted in this context that the judge was careful to make due allowance for the difficulties faced by the mother during the course of her the hearing, both as a litigant in person and generally.

30. In my judgment, the judge's reasons were sufficiently articulated and properly set against the backdrop of the law as he had outlined and directed himself to apply.

31. Finally, the judge specifically considered, as already quoted, other safeguards.  It is implicit that this included supervision, which option the mother had in any event, flatly rejected.  Having seen and heard the mother give evidence, the judge was entitled to conclude that no safeguards could be put in place to ameliorate the risk.  In my judgment, in circumstances where the basis for excluding direct contact was the mother's uninhibited, threatening and abusive conduct which she had shown herself unable to keep in check, even before the court, and which behaviour was directed in the main towards the primary carer of the child in question, it was unnecessary for the judge to go further and spell out why he rejected various alternatives, for example contact centres or third party supervision. 

32. This court always applauds concise judgments, but they must contain all that is necessary for the parties to understand the reasons for the judge having reached the decision he or she has and which found, the order made.  In my judgment, the judge in this case cannot be said to have fallen into the trap of giving a judgment which was too crisp and too succinct with the consequence that it has become "unjust because of a serious procedural or other irregularity in the lower court", and I would accordingly dismiss the appeal.

33. I would finally say, however, that, as pointed out to Miss Jackson in argument this morning, no order in relation to a child is a truly final order, save for an adoption order.  One hopes very much for H's sake that the mother can, as the CAFCASS officer hoped many months ago, begin to come to terms with the difficult and distressing decision she has made and, more importantly, come to terms with the fact that the step mother is providing a loving and caring home for her child.  If the mother can make such progress, one would hope very much that consideration can in the future be given to direct contact taking place, which outcome must be everybody's aspiration and hope.

34. LORD JUSTICE CHRISTOPHER CLARKE:  I agree.

35. LORD JUSTICE LONGMORE:  I agree also, and reiterate the gratitude the court has to Miss Jackson for undertaking the appeal on a pro bono basis.