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A-H (Children) [2008] EWCA Civ 630

Application for permission to appeal orders in an intractable contact dispute. Application refused but with recommendations for future representation of the children.

Orders had been made by Coleridge J in February 2007 relating to contact with the father’s daughter. He also made a s91(14) order on the basis of the mother’s assertions that she would try to ensure that the contact order was complied with. At that hearing separate representation was dispensed with on the advice of the CAFCASS guardian. However that order was not effective and it came before Coleridge J again in October 2007 where he revised the order allowing, among other things, the daughter to alter contact with her father. The s91(14) remained in place. Again that contact was ineffective and so the father appealed.

In this judgment Wall LJ reviews the history of the proceedings and, while expressing concern about aspects of the judge’s order particularly the dispensing of separate representation, declines to allow the application because of the judge’s broad discretion in the matter. However he agrees with the father that one way forward would be to involve NYAS on behalf of the children and so directs that the father can disclose the case papers to them.
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Case No: B4/2008/0492
Neutral Citation Number: [2008] EWCA Civ 630
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE COLERIDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 20th May 2008

Before:

LORD JUSTICE WALL,
LORD JUSTICE RICHARDS
and
SIR PAUL KENNEDY
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A-H (CHILDREN)

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(DAR Transcript of
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THE APPELLANT APPEARED IN PERSON ASSISTED BY A MCKENZIE FRIEND

Mr F Moat (instructed by Messrs Jerry Lewis) appeared on behalf of the Respondent.

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Judgment
As Approved by the Court

Crown copyright©
 
Lord Justice Wall:
1. This is an application by Mr A for permission to appeal against an order made by Coleridge J on 15 October 2007.  The case concerns Mr A’s two children, both girls, whom I will call respectively C,  born on 29 June 1994, and R born on 26 May 2002.  The respondent to the application is the children’s mother, Miss H.  The application came before me by way of oral hearing, without notice, on 1 May, and I put it over for the application to be heard inter partes with the appeal to follow if permission was granted. The result is that this morning we have had the benefit of argument from Mr A, assisted by his McKenzie friend, and the assistance of Mr Frank Moat, counsel instructed recently on behalf of the mother.
 
2. This is what has become classically known as an intractable contact dispute. On the last occasion, I asked Mr A if he would produce for me a bundle of court orders.  He has duly done so, and the orders make dispiriting reading because, as so often happens in cases of this nature, a father who has a perfectly happy and proper relationship with his children runs into difficulty in having that contact once there has been a separation; and here we are some five years later, effectively at deadlock.  And it is particularly poignant in this case because of the two children: the elder clearly did enjoy seeing her father, loved her father and got on well with him, and, initially, when she was very small, the younger child, R, was the same.  We are now told that R thinks her father is dead.  She has not seen him for a very long time indeed and under the judge’s order there is, as the father complains, very little prospect of him resuming a relationship with her.

3. The question which has exercised us is: what, if anything, can we do?  And so I go back to the order which the judge made on 15 October.  He had come into the court case, of course, relatively late in the day. The  substantive order which he made – and which is not that being appealed - was actually made on 8 February 2007. On that occasion the children were still represented by a rule 9.5 guardian who had been appointed at an earlier stage, and the judge made specific orders that the mother was to make C available for visiting contact with the father on alternate Saturdays from 11.00 to 5.30 during the winter and from 11.00 to 6.00 in the evening during British and EU summertime.  There was to be reasonable indirect contact between R and her father by means of letters, cards and gifts.  A copy of the judge’s judgment was to be made available and the children were  to remain living  with their mother. 

4. At the same time, the judge made an order under section 91(14) of the Children Act barring any party from making further applications to the court without leave until 29 June 2009.  Any applications for leave were reserved to  Coleridge J for his consideration.  Now that order was made on the basis of a number of assertions which had been given to the judge, including an agreement on behalf of the mother that she would use her best endeavours to ensure that C was  punctual.  If there was going to be a cancellation or delay in the contact, the father would be contacted or a message got to him. The mother also agreed that she would organise staying contact for C with her father in London if C requested it,  and that she would provide the father with anonymised copies of school reports. 

5. In the same order,  the court acknowledged that there was no reason why C should not stay with her father in London whenever she wished that to happen. However, it was a condition of contact that the father should not be informed of her mother’s address or the children’s address or the name of the children’s school or their general practitioner. 

6. I have deliberately not gone into the history, but the particular reason that these orders were made was that during the course of the proceedings the mother had, without notice to the father or indeed the court, decamped to the West Country, where she now lives.  The father has moved to Swindon which is within striking distance of where the mother is, and contact has been exercised by him travelling from Swindon to Bath. 

7. The order made by Coleridge J in February 2007 of course was not the first order made in the case. There have been many previous hearings, including, in particular,  before Bracewell J whose judgment   in the case on 18  November  2005 has been transcribed.  However, it is important to note that at the hearing in February 2007 before Coleridge J, the CAFCASS officer who, at that point, was the children’s guardian took the view in the final report which she wrote in 2006 that this was a case which could now move towards a final order; that there should be orders where necessary, and that  it was not appropriate for C in particular to be responsible for her own contact arrangements.

8. The guardian’s views, clearly expressed, was  that contact should be  by court order but she went on to say that, once orders were in place, it was no longer necessary for the children to be separately represented.  The judge plainly took that advice because the guardian appears to have dropped out of the case with effect from the order made in February 2007. 

9. Speaking for myself, I regard that as highly unfortunate because there was no independent means thereafter of ensuring that the judge’s order was properly implemented or put into effect. In addition,  when the matter came before the judge in September 2007 on the father’s complaint that matters were not being properly implemented, there was an even more unfortunate muddle because the father turned up in the morning,  but the mother did not. She only turned up in the afternoon, and one of the principal complaints made by the father today to us -- and indeed to me on a previous occasion -- was that he does not know what the mother said to the judge in the course of the afternoon, and what the mother said to the judge in the course of the afternoon – he says - appears to have been highly influential. 

10. However, what we do have is the order made by the judge on 14 September 2007, and that effectively put the matter over until 15 October when both parties were due to attend. The mother was to file a statement by Friday 5 October explaining why contact had not taken place as it was ordered.  That I do not think she did.  But on 15 October the judge expressed the intention to address the applications for the father to have greater knowledge of the children’s whereabouts and their school,  and  to address the father’s applications for contact with  C. 

11. Thus it was that the matter came before Coleridge J in October 2007, and the order which he made represented a substantial change in approach from the order which he had made in February. The judge decided that C herself would make the arrangements for contact direct with her father and could alter them by telephoning the father direct not less than 24 hours before any proposed contact. 

12. The judge appears to have adopted this new approach (which was, of course, contrary to the advice of the guardian in February 2007)  because he took the view that C wished to see her father;  and because he believed the mother when she said she would facilitate that contact. He also accepted that  C had expressed the view that she wished to see her father at fortnightly intervals beginning on 20 October,  and accepted  the mother’s assurance that she would do her best to ensure that C continued to attend contact as far as possible in accordance with the present arrangements, namely fortnightly intervals in Bath. On this basis,  the judge discharged the fixed contact order he had made in February.

13. The judge, however, kept in force the remainder of the order which he had made in February, including, within that, the section 91(14) order, and that expressly is said in the order itself to remain in force. 

14. The judge gave a judgment on 14 October 2007 which we have transcribed in our papers, and it is I think important to look at parts of it.  First of all, he said that he was not going to revisit the question of R’s contact, as he put it, “without the most careful further investigation by a guardian if that becomes appropriate”.

15. The father was at pains to point out, and was right to point out, that contact had not taken place in accordance with the judge’s previous order. The judge appears therefore to have accepted the assurance given to him by the mother that she would ensure, insofar as she was power, that contact would take place at the fortnightly intervals in the previous order, but that it should not take place pursuant to a specific order.  The judge at paragraph 11 of his judgment said:

“So, I am sure that the best way forward from now on is for me to discharge the contact order in relation to C on the basis that -- and this is to be recorded in the order -- the mother has assured the court that she will do her best to ensure that C attends contact with her father on at least a fortnightly basis beginning on this weekend, which I think is Saturday 20th October.  Also she will ensure that C will contact her father not less than 24 hours in advance if she wishes to change that fortnightly arrangement.”

As I have already indicated, at this point there is no guardian left in the case and therefore there was no mechanism to ensure that that assurance was honoured and the order put into effect.

16. We have been given by the father a schedule of contact which has taken place since the order of the judge was made in October 2007, and it is apparent from that schedule -- although it seems to be in a different form for different members of the court    that, following the judge’s order, there was a contact on 20 October 2007; there was a contact on 9 December 2007, and it is common ground now that there has been a contact on 22 March of this year, but contact plainly has not taken place as the judge envisaged that it would.

17. The father is naturally upset and complains.  He says that he has had five years of applications to the court and here we are, five years later, effectively at stalemate.  There is no contact of any kind except for the most peripheral and indirect in relation to R, and the arrangement for contact with C, set in place by the judge,  was not working, and was not working, he says, because the mother has failed to honour her obligations in relation to it. 

18. The mother’s  response is that C is a girl of independent mind.  She is approaching fourteen, and she is fed up with the prospect of continuing court proceedings. This morning,  the mother has produced a letter said to be from C, which I propose to read because it affects what I have in mind to do. (It appears to be addressed to Coleridge J):

“Dear Judge,

 I am writing to you because I think it’s pathetic that you let my dad take my mum to court. 

You said you wouldn’t allow it until I was 15 or 16 which I’m 14 this year.

Since my dad has stopped taking my mum to court I have been doing well at school and now you have allowed him to take my mum to court you’re making it worse for me.

I think I’m old enough to make my own decisions on what I would like if I would like to stay at my dad’s house or not  I’m old enough to make my own decisions. 

I don’t think it’s fair that my dad is taking my mum to court and it’s an open court which is worrying for me because I’m not there to see what’s going on.

Could you tell me before you go to court what it’s about because that’s what worries me as well.”

19. Two points strike me immediately from that letter.  The first is that C may be under a complete misapprehension about the nature of these proceedings because she expresses an anxiety about staying with her father when the father’s principal concerns, as I understand at the moment at least, is to resume the visiting contact which he has been having in Bath; and secondly, in the final sentence, plainly C has a complete misunderstanding, or no understanding at all, about what the proceedings are for, and indeed such understanding as she does have would plainly appear to derive from her mother who, on a neutral view of the case, plainly does not have any form of positive relationship with the father, and equally plainly does not appear to have honoured her obligations to the judge in relation to the previous contact order.

20. So the question returns and abides: what, if anything, can we do?  Mr Moat, in his oral submissions to us today, points out that we are dealing here with a judge of great experience and a High Court judge who exercises a very broad discretion who has taken a particular view of the case, not at first hearing but after many hearings and much difficulty, and that we should not therefore interfere and that if anything needs to be done, it should be done by Coleridge J and that if we are concerned about the position we should remit matters to him to enable him to make a further order.

21. Speaking for myself, the points which worry me about the case are these:  the first is that the judge has dispensed with the guardian on the basis that the guardian recommended a final order, which was in fact an order for contact, not an order allowing C to make her own arrangements – something the guardian said was not appropriate. There is thus no mechanism in place at all for any assistance to be given to C  or R or these warring parties as to future progress.

22. Secondly, the judge has also said that the “no order principle” should apply, but of course that principle normally operates in circumstances in which the parties do not need an order because they are cooperating and happy with what is happening and court intervention is not required.  Here the judge has deliberately shut out further applications under section 91(14) whilst at the same time effectively giving C the decision as to whether or not she should have contact with her father.

23. This is the third point which troubles me -  namely  that it is left to C, under the order, to make her own arrangements with her father;  something which should have been supported and facilitated by her mother and has plainly not been. The result is that the father has seen very little of C in the last six-to-nine months.

24. In these circumstances we are faced with a dilemma.  We recognise, of course, that the judge is exercising a very broad discretion.  At the same time this court plainly has a duty to ensure, in the best interests of these two children, that, if possible, they have a relationship with their father.  There is nothing in the papers that I have ready which would indicate that there is anything inappropriate in the relationship the father should be having with his two daughters, and indeed it is clear from earlier documentation that he did indeed have a very good relationship with C at an earlier stage and it is very much to C’s credit that she still wishes to maintain the relationship with him, notwithstanding the circumstances in which she is currently living.

25. I am equally worried about the lack of the father’s relationship with R and the lack of any mechanism in the court order to enable  R’s contact  and relationship with her father to be facilitated.  And so there are aspects of the judge’s order which do greatly concern me.  At the same time, however,  I  recognise that he was exercising a judicial discretion and, in the very sensitive atmosphere of this case, it does not seem to me appropriate for us to impose any other order than that which the judge has made.  If the judge is going to vary the order it is for the judge to vary it.

26. However,  speaking for myself it is simply not possible for me to come to the conclusion simply that this appeal should be dismissed and no further action should be taken. We discussed with Mr Moat during this morning  -  and indeed it is a part of the father’s case  with which I sympathise - that it would be appropriate to replace, or reinstate, the independent third party who can assist the children and the parties in reaching an accommodation over contact or, if necessary, can argue the children’s point of view in court.  That mechanism at the moment, as I have already indicated, simply does not exist because the guardian has been discharged from the case.

27. I think it necessary, in view of the mother’s reaction to what I said about NYAS, for me to explain to her what NYAS is.  NYAS is a charitable organisation which represents children -- it is called the National Youth Advocacy Service -- and it is there to assist and to help people, including particularly children, to come to terms with marital or relationship breakdown and to facilitate sensible contact arrangements. 

28. NYAS is also there to act as a voice for the particular child or children with whom they are engaged, and if NYAS comes to the view that there is nothing it can do in a particular case or that the children do not need assistance or separate representation then that is what NYAS will say, and NYAS will not become involved. 

29. In the instant case, the father says one of the only ways really to move this case forward is either to take it away from Coleridge J, which is not a view I share, or to involve NYAS in the case so that NYAS can consider the papers and then decide what advice they would give and what assistance they can offer to either of the parties and, indeed, in particular to the two children. In those circumstances if NYAS takes the view that it was necessary for them to become involved in the actual proceedings, they could apply for party status on behalf of the children, but in any event they would be there to advise and assist.  And therefore I do hope that in the period which will now occur whilst  NYAS is approached, the mother will carefully reflect on what I have just said and what NYAS may say to her, because it is my view that the action we should take in this case - whilst I fear the appeal has to be dismissed - the action we should nonetheless take is to give the father the permission he seeks, which is to show the court papers to NYAS and to ask NYAS’s advice on the way forward.  If NYAS takes the view that there is no advice it can give or that there is no profitable way forward, it will of course say so; but it will, I think, offer the parties and in particular it will offer C the opportunity she plainly needs to understand what is going on.  I repeat the last sentence of her letter:

“Could you please tell me before you go to court what it’s about because that’s what worries me as well.”

30. We are told that C is about to embark on her GCSE course.  That should be a period in her life which is fulfilling.  It should be one in which her father should participate. It should not be one that is perceived as antagonistic to him or in which he is perceived as being antagonistic to her.  Clearly he has a good relationship with her.  The court’s aim is to foster that relationship and indeed its duty is to do so, because that is plainly in C’s best interests.  And therefore NYAS, far from being the disruptive influence which the mother fears, would in fact, in my judgment, be of assistance both for the mother and in particular to C, and will enable C to make sense of what is going on and, one hopes, to be able to facilitate the proper relationship with her father which she plainly should be enjoying. 

31. Equally, NYAS will need to take a view about whether anything can be done in relation to R child, and that is a matter again which I am reluctant to leave alone in the way the judge has done..

32. And so, speaking for myself, I have come to the view that, whilst I am unhappy about the way in which Coleridge J has approached aspects of this case, I nonetheless take the view that he was exercising a very broad discretion with which it would be inappropriate for this court to interfere, and, in particular, it would be inappropriate for this court to make any orders which are different from those which he has made.  At the same time I am satisfied that these children do need expert assistance, as do the parties, and in those circumstances, whilst dismissing the appeal, I would come to the clear view that the father should be given the permission he seeks to disclose the case papers to NYAS and for NYAS to be at liberty to advise as to further progress and indeed to make an application to the judge, if necessary, to be joined for party status.  That is therefore the order that I would propose.

Lord Justice Richards: 
33. I agree.

Sir Paul Kennedy: 
34. I also agree.

Order:  Application granted; appeal dismissed