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Re D (A Child) [2014] EWCA Civ 1057

Appeal from a decision to refuse to order direct contact between a father and his son at the final hearing after four years of court proceedings.

The parties separated in February 2003 when their son, B, was just a few months old. They built up a schedule of contact between them so that by 2007 the father was having weekly overnight contact which continued until Spring 2010 when the mother reported that B was returning from contact with various injuries. In June 2010 she issued an application to suspend contact (and suspended contact) and the father issued an application for contact.

At the fact finding hearing into the allegations of physical abuse HHJ Hornby dismissed all the allegations against the father (save for once failing to return B after contact). Hornby J found the mother to be untruthful in her evidence and he exonerated the father from being responsible for the termination of contact. Judge Hornby directed a psychological report in respect of B, a s.7 report by the London Borough of Hackney and that B be joined as a party; he subsequently allowed the Guardian to instruct a further expert, and in 2013 a s.37 report was ordered by HHJ Mitchell. During this time various attempts at re-establishing contact failed, including family therapy sessions and enlisting the assistance of B's older sister.

The final hearing was adjourned due to unavailability of a judge on that day and finally came before HHJ Cryan in October 2013. Judge Cryan found that the father lacked empathy and insight into B's needs and wishes and his part in the ongoing situation was no longer 'unimpeachable'. The judge found the mother to be inconsistent in her evidence and to have continued to have relied on the allegations against the father (that were dismissed) to professionals and to the extent that B had internalised them as having happened, thus entrenching his opposition to contact. Reluctantly the judge concluded that, whilst B's wishes and feelings were not paramount to his consideration, to order contact contrary to them would cause B yet more distress and, all other options being exhausted, there was no alternative but to order indirect contact but not direct contact.

Permission to appeal was granted on the basis that there was a reasonable prospect of success on appeal as to 1) the proportionality of the outcome and 2) persuading the court that there had been an infringement of the father's procedural rights under Article 8 ECHR (referring to the delays, change in judicial personnel and what was said to be the unsatisfactory nature of the Local Authority reports).

Moore-Bick, McFarlane and Lewison LLJ (judgment delivered by McFarlane LJ) dismissed the appeal.

The Lord Justices considered the detail in which Cryan J had considered the evidence of the parents and the conclusions he drew as to their positions, namely that the father's lack of insight into the impact of the situation on B and the obvious challenges to reestablishing any form of contact, and the mother's entrenched and hostile position [28 – 32]. The court considered the wealth of evidence that Cryan J had before him, the rigour with which he explored whether there were any strategies that had not yet been tried and the gravity with which he approached his decision, and concluded that he had not erred in reaching the decision that he did [49]. The Court of Appeal stressed that the judge was correct, not because of the nature allegations (that had been dismissed) but because:

"it is not possible to hold that Judge Cryan was 'wrong', in terms of proportionality, in endorsing the outcome that he endorsed (…) It is hard to contemplate any court ordering direct contact then and there, even with a short introductory period as the father suggests, as being justified with respect to the welfare of this troubled boy." [52]

Their decision was not affected by a bundle of documents provided by the father that had not been before HHJ Cryan, which should have been before the judge but did not in their opinion add anything such that the judge had been incorrectly informed [40].

The father argued that the Cafcass reports had been inadequate in failing to record a crucial conversation between himself and B. The Court of Appeal noted that this had not been raised previously and given all the other evidence did not justify the re-opening of the case. The Court acknowledged the length and delay in proceedings but observed that much of the time, rather than being 'empty' was filled with reports and attempts at re-establishing contact. The change in judicial personnel was regrettable but did not render the process unfair in breach of the father's (or B's) procedural rights under Article 8. Finally the Court found that the reports of the local authority, whilst held to be less than adequate by HHJ Cryan, were not so deficient as to leave the court insufficiently appraised, particularly given the supporting evidence before the court.

Summary by Esther Lieu, barrister, 3PB Barristers

Neutral Citation Number: [2014] EWCA Civ 1057


Royal Courts of Justice
London, WC2A 2LL
Wednesday, 25 June 2014
B e f o r e:





DAR Transcript of the Stenograph Notes of 
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The Appellant appeared in person
Mr P Thomas - Pedder appeared on behalf of the First Respondent and Miss S Stamford (instructed by Aitken Harters) appeared on behalf of the Second Respondent

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1. LORD JUSTICE McFARLANE:  This an appeal brought by the father of a boy who has been the subject of proceedings between his parents for much of his life and, in particular, for the last four years. 

2. The boy, B, was on born on 11 December 2002 and is, therefore, now 11 and a half years of age.  His parents are both of Turkish origin, although, as I understand it, they have lived in this country for a long time.  His father is now in his mid 50s and his mother in her mid 30s.  The couple were married after a period of two or three years cohabitation in March 2002 and, as I have indicated, B was born at the end of that year in December.  However, the parental relationship was not to endure much beyond that moment and the couple separated in February 2003. 

3. The father maintained contact with B initially, after some time establishing a regime that became to be regularly visits on a fortnightly basis, but that ceased in March 2004 following an occasion where he, he says for sensible and good reasons, decided not to return B to the mother's home at the end of the contact session.  That caused contact to cease, but it gradually restarted. 

4. By the time early 2006 arrived, the court was able to make contact orders that were agreed between the parents and that came to establish contact once a fortnight over the weekend with B staying with the father.  Again, that too developed so that by January 2007 the overnight contact was taking place weekly.  The contact is said, in judgments given by various judges of the lower court, during that period of four or five years, to have gone well. 

5. That was not to continue, however, because by the spring of 2010, the mother reported that she began to be concerned that B was being injured during contact with the father.  She noted in particular what she thought was an injury to his foot on one occasion and then, two or three weeks later, she thought that there was an injury to his ribs.  This led to her suspending contact in May 2010.  There was a short attempt to resume contact, but the final contact that took place under the ordinary arrangements occurred in June 2010. 

6. In June 2010, the mother issued applications to suspend contact.  The father countered with applications for contact.  It is those proceedings, which started almost four years ago to the day, which are still ongoing in the sense of this court now hearing an appeal from the final order made at the conclusion of the process by HHJ Cryan on 4 December 2013.  The outcome of the proceedings was for Judge Cryan, reluctantly, to accept that there should be no further attempt to establish direct contact by court order between B and the father. 

7. Arrangements for indirect contact were made.  In particular, the court order records that the father confirmed to the judge:

"His current intention to meet with the guardian in or about January 2014 to write a letter to B to express his understanding of B's wishes and feeling, confirms his availability for B if and when required, and include appropriate and positive messages and support for him now and in the future."

8. The father, instead of taking up at that time the option of communicating in that way, filed his notice of appeal very promptly on 16 December.  The application was supported by grounds of appeal prepared by the father as a litigant in person which were wide ranging and sought to criticise the provision of documents to the judge, the process before the lower court, the number of times that judges who had had the case before them changed from hearing to hearing, and simply the failure of the system to produce a result for him. 

9. Permission to appeal was granted by Aikens LJ on 2 April 2014 and it is right to record the basis upon which the permission was granted.  Having summarised the background as far as was necessary for such a short hearing, Aikens LJ indicated that there was a reasonable prospect of success on appeal as to the proportionality of the outcome, namely, a refusal of direct contact, and, secondly, that there was a reasonable prospect of persuading a full court that there had been infringements of the father's procedural rights under Article 8 of the European Convention on Human Rights, that being a reference to delays, changes in judicial personnel and what was said to be the unsatisfactory nature of Local Authority reports. 

10. Aikens LJ stressed the importance of the father achieving legal representation if that is possible.  We have now heard the full appeal and have been assisted by the father acting in person, as he still is, telling us in his own words the matters about which he complains, which, for my part, was a far more informative process than reading the original notice of appeal and skeleton argument.  He has been assisted by a friend acting as his McKenzie friend.  We have also heard submissions by counsel on behalf of the mother and shortly on behalf of the Local Authority. 

11. So, what is the case about and why is it that this father is in this position with his now 11 year old son, notwithstanding there having been good contact for a period of some years after the separation?  Well, the first part of the answer to that question is that the mother suspended contact, as I have described, in the early part of 2010 because she was concerned that her son had been injured during contact.  She came to make detailed allegations against the father, alleging no less than four separate occasions of assault and also referring to times when they were together as a couple and he had been violent to her. 

12. Not unsurprisingly, Cafcass advised the court that it was necessary to have these factual issues determined before any question of how contact could be progressed was considered.  Thus it was that HHJ Hornby conducted a fact finding hearing and gave judgment at the end of that process on 19 May 2011.  The result was clear.  HHJ Hornby was in no doubt that each of the factual matters alleged against the father in relation to the son was without foundation, save for the one occasion when the father had failed to return B to the mother in 2004.  The father admitted some violence during the parental relationship and the judge recorded that. 

13. Equally clear is the view that HHJ Hornby formed of the mother.  He described her as having been untruthful in some of the evidence that he had heard from her.  He described her as being exceptionally intelligent and, having observed the way she answered cross examination, he described her as being "skilfully evasive" in dealing with matters that were put to her.  On the other hand, he effectively exonerated the father from being responsible for generating the situation that led to the termination of contact. 

14. In addition, HHJ Hornby had had the benefit of hearing evidence from the mother's new partner.  Again, the judge was profoundly unimpressed by that individual's insight into how to deal with young B and, indeed, how he should approach B on the question of contact to the father. 

15. That set of findings, helpful and clear though they are, of course, did not deal with how the case should move forward because, for better or for worse, by that stage, a year or so after the mother's initial concern, B had apparently become entrenched in a view which was highly negative in respect of the father and a view in which he expressed his own belief that he had been physically injured when in his father's care and so he was against contemplating any contact with the father. 

16. The matter, therefore, progressed and various hearings with a number of strategies being tried and attempted by the court.  The first was to adjourn at the end of the fact finding process on the basis that the family might undertake what is referred to as family mediation.  It is clear from the papers that that never got off the starting blocks. 

17. At a hearing two or three months later in October 2011, Judge Hornby was persuaded by Cafcass that it was necessary to have expert assessment of the underlying reasons for B's stated views.  B was, therefore, joined as a party, a guardian was appointed to act on his behalf and the case was adjourned for a psychological report.  In addition, the assistance of the Local Authority, the London Borough of Hackney, was sought.  They were asked to file a section 7 welfare report.  They did that in November, but that was later described by judges as being "superficial" or lacking in any in-depth understanding. 

18. The following year in March, Judge Hornby again adjourned the case from a date that had been planned as a final hearing to allow Cafcass more time for assessment and he granted their application to instruct yet another expert.  Optimistically, as it turned out, the final hearing was booked to take place in June 2012. 

19. The second expert, a Mr MA who is a family psychotherapist, reported in May 2012 and recommended that there be four sessions of family therapy.  With hindsight, Judge Cryan, who dealt with the case in the sequence of events I am describing, expressed his view which was that it was difficult to see, even on the basis that Mr MA described in his own report, that the suggestion of four sessions of family therapy was realistic in terms of addressing the difficulties in this case.  Be that as it may, the case was then adjourned to allow attempts to be made.  In June 2012, the chosen therapist, a Mr B, who was to try to undertake this work reported that neither parent seemed genuinely committed to the idea of therapy and so that proposed intervention met the buffers at that stage. 

20. Another unwelcome development in the context of this case was that Judge Hornby no longer sat at the County Court at Bow which had been dealing with this case and was, therefore, apparently no longer available to undertake any subsequent hearings.  It may be now, in the regime that exists under the single Family Court since April 2014, that no matter where a judge is moved to, within geographical reason, and London has the benefit of close proximity even if judges move to courts which are across the other side of London, it is now more possible to contemplate the same judge holding on to the case.  Indeed, the guidance at the present is that the same judge will hold on to the case until its conclusion.  Be that as it may, that is not what happened here. 

21. The case was held for a short time in early 2013 by HHJ Mitchell.  He attempted a further strategy, which was to enlist the support of one of the father's older children, who apparently had a good relationship with B, to see if she could meet with B and that B might, as a result of that meeting, be more encouraged to meet with his father.  The meeting went well.  It was a one off.  The young lady does not live in this country.  Despite the positive nature of her encounter with her half brother, the boy, B, remained adamant that he did not wish to contemplate contact with his father. 

22. Thus it was that Judge Mitchell set the case down for a final hearing in August 2013.  At the same time, he ordered a section 37 report from the London Borough of Hackney.  The significance of a section 37 report, as opposed to an ordinary welfare report under section 7, is that section 37 invites the Local Authority to consider whether or not the circumstances of the case are sufficiently serious to justify issuing an application either for a care order or a supervision order with respect to B.  If an application for a care order were made, that would trigger the court's jurisdiction to consider removing B from the home of the mother if that was seen to be in the child's best interests. 

23. The section 37 report was filed on 29 July, but again it was described in rather negative terms by HHJ Cryan.  It was only taken by that judge as being a source of information in two respects; firstly, that B was doing reasonably well at school and, secondly, that, when the new social worker saw him, he was, as he has been reported to be with every professional that has seen him, adamant about even considering the possibility of seeing his father again.  So certainly on the basis of their assessment, the Local Authority did not consider it in B's interests to issue an application for a care order or a supervision order. 

24. The final twist in this sequence of events before we get to the final hearing is that a proposed final hearing fixed for 5 August 2013 was adjourned on that day because there was no judge available at the Principal Registry of the Family Division in Holborn to take the case.  The final hearing eventually occurred before HHJ Cryan, as I have indicated.  It took place in October and lasted three or four days. 

25. The judge had the benefit of a wealth of documentary information, in particular the reports in 2011 by the original psychologist; the two reports by Mr MA, the family psychotherapist in 2012; and the related report of the therapist, Mr B, also in 2012.  He had a sequence of Cafcass reports and the Local Authority reports.  He did not hear oral evidence from any of the instructed experts, but he did hear at length from the mother, the father, her partner, the social worker and the children's guardian.  He then adjourned for submissions and, as I have indicated, gave his written judgment on 4 December 2013.  The outcome was to refuse contact. 

26. I am bound to say that HHJ Cryan's judgment is, as a piece of judge-craft, a model of its type.  It is clear to any reader the detail that the judge had in mind, the significant matters and the history upon which he relied, the law as he sought to apply it and, importantly, his appraisal of the mother, the father and the mother's partner and the key issue of how matters could proceed, given the entrenched position that B was reported to have. 

27. It is not necessary for me to summarise the history in any more detail than I have done.  Judge Cryan, coming to the case three and half years after contact had broken down and coming to the case after a number of strategies had been tried and had not succeeded, was left with a limited range of options.  He had to form his own appraisal of the parents.  Unfortunately, my reading of what Judge Cryan says speaks out very clearly that in regard to the relationships within his family, young B has not been served well by the two individuals who happen to be his parents, despite the obvious love that each of his parents are said by various judges to have for him.  I will explain in short detail why I say what I have just said. 

28. Dealing first with the father, despite the clear message given by the reports of various professionals as to just how entrenched B is in his stated opposition to contact, Judge Cryan recorded at paragraph 71 of his judgment that the father:

"showed very little appreciation of B as an individual with his own thoughts, concerns and conflicts.  He was, in short, wanting in insight to a very marked degree."

The judge gives more reasons.  At paragraph 72, the judge says this:

"The father seems to hold to the view that all will be necessary to put things right would be a very short time with B, who he is content will revert to the little boy with whom he had a loving relationship as recently as the early summer of 2010."

The judge then says this at paragraph 73:

"The difficulty for him is that the situation is more complex than that and he seems not to appreciate that...  I found little, if any empathy in the father for the mother, and for that matter even for B.  He seems not to have understood the vulnerability of the mother to complaints by him to social services in July 2009 and October 2010.  He did not appear to appreciate the unreasonableness of withholding maintenance and its impact on B.  He may be a man more sinned against than sinning, but he is not unimpeachable.  This situation is not wholly of his making, but it is partly, and he does not see it."

29. So Judge Cryan's conclusion with respect to the father is that he was not (to use the label) "unimpeachable" and that the father was in fact part of the problem that now had to be contemplated with respect to B rather than 100 per cent part of the solution as he would see himself as being. 

30. What of the mother?  I have already indicated, the view Judge Hornby formed of the mother and how, to use my phrase, she had bought into the concept of her son being injured upon a number of occasions by the father, that she had at times exaggerated what was being said about that and certainly had not done anything to reduce the boy's anxiety as to seeing his father again in the future.  Judge Cryan encountered a lady in the witness box who was giving two separate messages.  Judge Cryan described this as "double speak". 

31. On the one hand, the judgment records her as fully accepting the findings of Judge Hornby and as saying, "My son can see his father whenever he wants."  But having observed the mother in the witness box for a great deal of time and, as the judge says, with great care, he says this:

"I am satisfied that she is in the same place as she was when she brought false and grave allegations before the court, which Judge Hornby so roundly rejected.  It is the same place where she repeated those allegations against the father to various professionals after the judge's findings.  I am satisfied that there is no change in the woman who the various professionals have described as giving B the clearest emotional signals about her real view about the father and her encouragement of his vilification.  I am satisfied that without a clear act of will either to change herself or to genuinely engage in therapy, she will not alter and I am clear that there is no prospect of her amending her conduct without some Draconian action, which she knows others will be loathe to take for fear of further collateral damage to B, who is so enmeshed with her."

32. If I may say so, Judge Cryan very neatly there encapsulated the central difficulty in this case.  So it is that I say that B has been unfortunate in the two parents that he has, given the turn of events, whatever the situation may have been at the beginning of 2010, that now leads them each to be incapable of changing their positions, incapable of having insight into the need to change and both of them each, separately, being very much part of the problem that their child is growing up now without any active, real, up to date knowledge of his father and, perhaps more importantly, with a heavily battened down and entrenched highly negative view of his father who is, of course, a significant part of his own genetic and cultural identity. 

33. The judge, having described the depth of the problem, sought advice and was given advice by the children's guardian, which was effectively that the proceedings had been going on now for nearly three and a half years and there was benefit in ending the process as there was no prospect of taking the matter further forward. 

34. From paragraph 89 onwards in the short section headed "Discussion", Judge Cryan analyses the factors.  He stresses that he is not affording paramount consideration to one factor, namely, B's wishes and feelings, but it is plain that the judge had to take account of the fact that this was now an 11 year old boy who was consistently saying, and had consistently said before for four years, that he did not wish to see his father.  The judge disagreed with the father's analysis of matters and concluded that to move the boy on from these views would not be easily achieved and certainly not in what the judge called the "simplistic" way that the father had described. 

35. The judge had to contemplate the impact on B of trying to force the pace and make directive orders directly against the boy's wishes and feelings.  The judge considered that any strategy of that character was unlikely to succeed.  At paragraph 92, he says:

"It would result in the distress of the child because of the emotional conflict which has been identified by the guardian and various experts."

36. So no gain would be achieved, but there would be, as predicted by the judge, a deal of pain in the process.  Thus for those reasons, and despite the fact that the judge expressly acknowledged the impact upon both the father and B's Article 8 rights, he made the order that he did, leaving open the only pathway to contact by the provision of assistance to the father in drafting a letter, to which I have already made reference, and basic indirect contact. 

37. The father's appeal is, as I have indicated, broadly based.  It is focused upon a lack of documents, first of all, that he says were not made available to Judge Cryan.  What seems to have occurred is that the bundle of documents was assembled by lawyers.  The father had lawyers in the lead up to the hearing, but, for reasons that I know not, they parted company on the eve of the hearing.  The father only realised gradually during the hearing before Judge Cryan that key documents that he thought were important were not before the judge. 

38. I understand the point and, indeed, we have been taken to some documents this morning which do not appear in the index.  For the purposes of this appeal, the father has put together an additional very substantial ring binder of documents, which, as I understand his case, represents the missing documents or documents that he considers should have been before the judge.  I have looked through that bundle and I can see the type of documents and the contents of the documents that it contains. 

39. If they were not before the judge, it is difficult to understand why.  But, more importantly, the content of that bundle is a record of how matters were at different twists and turns of the sequence of hearings and the development of the case in the lead up to 2013, but nothing new, it seems to me, is there.  During the course of his submissions, the father has not taken us to a specific document which would, as it were, be a clincher or identify some key point in the factual information that was not available to Judge Cryan. 

40. This was not a case, by the time it came before Judge Cryan, that would turn on the niceties of some discreet and narrow point of fact.  That was the substance of the hearing before Judge Hornby.  Judge Cryan had the all together more difficult task of deciding what to do, rather than determining what had happened.  So, in terms of lack of documentation, I cannot see how the father can progress his arguments to persuade me that the process before Judge Cryan was in some way so incorrectly informed as to be set aside. 

41. The second point that the father makes in a number of ways to this court is that he has lost complete confidence in the process undertaken by Cafcass over the years.  He rightly regards Cafcass as the agency which looks to support families and support the court.  He rightly understands that the approach of the Family Courts in cases such as this is to achieve either the reunification of family members or at least keep family members in touch with each other post separation.  The father considers that Cafcass has failed in this and, indeed, has actively achieved a result which has continued to maintain the split between father and son. 

42. Again, the father has been able to take us to one or two instances in this regard.  A particular reference is to an attempt at achieving some observed contact which was undertaken by a previous Cafcass officer in September 2011.  It seems that that Cafcass officer brought young B to a neutral venue in a London park.  The father was there and the purpose of the event was to try to encourage B to spend time with his father.  The father reported in his account to this court that there came a time during this encounter when, at the very end, son and father had a brief hug and, in the course of that physical closeness, B had said to his father that he would find his father when he was 16. 

43. We were taken to the note of the Cafcass officer, which, of its type, is a pretty full document.  That describes substantial difficulties that the Cafcass officer had in getting B even to get out of the car and to stand with the father.  The father agrees that B was apprehensive and anxious, looking round him all the time.  But the note does confirm that there was a moment at the end when B did walk, without being persuaded, towards the father to say goodbye and did engage in a hug.  The reporter does not record any conversation and it does not seem that the father said anything to the Cafcass officer at the time. 

44. For my part, two points arise out of that.  First of all, it does not seem to me possible to criticise the Cafcass officer for her note of the occasion, given the closeness and quietness of the conversation, particularly given what B is said by the father to have said, that will have taken place.  Secondly, this is a very prominent point in what the father says to us and I am sure that he will have raised it before Judge Cryan if it was important.  It does not seem to me to be a criticism that persuades me that Cafcass were in error or a matter that would justify reopening the case before a different judge other than Judge Cryan. 

45. The second more general observation about Cafcass arises from the thrust of the reports after the hearing before Judge Hornby.  There, in the earlier reports, the Cafcass officer says that there is really no reason why B should not be having contact with the father.  The father stresses that and, as it were, banks that as part of his case before us.  He is right to point to it.  The Cafcass officer was right to make the observation because Judge Hornby's judgment does not indicate any impediment to contact. 

46. But what the father does not point to is that in the very same report, the Cafcass officer questions how this contact can be achieved.  He recommends that expert assessment be undertaken.  That is what led to the instruction of the original psychologist.  Whilst the process has not achieved the outcome that the father wants or, as the system might rightly say, the boy needs, it does not seem to me that there is any criticism that can be sustained of Cafcass or of Mr A, the children's guardian, in this case. 

47. Those really are the central points that the father makes to us, other than his general plea which is that this is not a difficult or intractable problem.  He puts forward his McKenzie friend as a intermediary who could meet B on two or three occasions and that, after that, all would be well and that the father would be able to bring B to this court, for example, to show and demonstrate that he and his son were back in the happy, easy, ordinary relationship that they had had up until the middle of 2010. 

48. Well, I hear exactly what the father says and would hope that everything would be as easy as that, but this is the Court of Appeal.  We have to look at the decision that Judge Cryan took, being the judge who was steeped in this matter over the course of a number of days of hearing and then a period of time contemplating the outcome.  He considered that the position was far more intractable than the father describes it to us as being. 

49. If the appeal is to succeed, the father has to persuade this court that Judge Cryan was in error in coming to that analysis of the difficulty in the situation and was in error in describing the father as being lacking in insight and failing to understand the difficult situation that now exists.  Nothing that the father has said in the course of his clear submissions to this court has persuaded me at all that Judge Cryan was wrong in that regard.  Indeed, and I say this with respect to the father, much of what he said demonstrated that Judge Cryan had accurately analysed his position.  Accepting, as I must, Judge Cryan's analysis of the difficulty, the father's position before this court once again fails to engage to the necessary depth with the difficulties in the case. 

50. It is right to look more widely at the points that Aikens LJ had in mind in granting permission to appeal, first of all is the question of proportionality.  This is important.  When orders such as this order refusing any further direct contact for the foreseeable future between a father and his son are made, it is important that the State, through the court, should only endorse such a outcome if it is necessary and in proportion to the child's welfare needs to do so. 

51. The concern in this case is that the findings against the father as to what he physically has or has not done, and I stress physically has or has not done, are of a very modest nature.  In that regard, if that was the only element of proportionality, his actions prior to 2010 would not, as night follows day, justify stopping him seeing his child all together, but that is not the issue in the case.  The issue in the case is how can this 11 year old boy, B, who is stuck, as Judge Cryan found, in a highly negative mindset about his father and deeply antagonistic to seeing his father, possibly be brought to a state of affairs where he will happily, or even at all, sit in the same room as him? 

52. In that context, it does seem to me that it is not possible to hold that Judge Cryan was "wrong", in terms of proportionality, in endorsing the outcome that he endorsed.  Indeed, I will go further.  It is hard to contemplate any court ordering direct contact then and there, even with a short introductory period as the father suggests, as being justified with respect to the welfare of this troubled boy. 

53. The other limb about which Aikens LJ was concerned related to whether the system as a whole may have failed here in terms of the delay in coming to a resolution, the change of judicial personnel and the apparent inadequacy of the Local Authority response and that somehow an unimpeachable father had been not been accorded a fair trial on the issue of contact or the boy had not had a fair trial or a proper appraisal of the issues in his case.  I understand why my Lord will have been concerned about these matters when granting permission to appeal, but for my part, I have regard to two matters. 

54. First of all, the time that went by was not completely empty time.  Whist there were, unhappily, periods of delay and inaction, each of the occasions when the case was adjourned was for what was no doubt thought to be at the time an honest attempt to try to achieve some form of out of court invention that might move matters on.  In the end, this is not a legal problem.  It is a psychological and emotional problem arising out of the various adults in the family impacting upon the boy.  So it is understandable that courts and Cafcass advisers would look to remedies which bring the people together with expert assistance outside the court room.  That all took time and it all came to nothing, so, in that view, it was "wasted time."

55. There were then inevitable difficulties in the system with the provision of judicial continuity and then the undoubted unfortunate occasion when the final hearing could not take place in August.  Those matters, sadly, were features of the system prior to the introduction of the single Family Court and do not lift this case out of the ordinary and certainly, to my eyes, do not establish anything that would approach a breach of a right of fair trial. 

56. Finally, the inadequacies of the Local Authority reports.  Those are matters that were expressed in terms of regret by Judge Cryan.  The reports delivered some information, but, in terms of the court being fully appraised, I do not think they adversely impacted upon that factor.  The court did have full reports from the Cafcass officer and, apart from what is said by the father, to which I have already made reference, no substantial criticism can be made of those reports.  Also, the court had had at an earlier stage assessments by no less than three separate psychologically based experts.  So again, it does not seem to me that the court or the process in any way fell short of what the European Convention on Human Rights would require. 

57. For all those reasons, and despite, as I do, having enormous sympathy for this father and the position that he is in, I can see that there is no ground upon which to hold that the either the process before Judge Cryan or the outcome of that process were in error or were wrong.  On that basis, the only outcome is that the appeal must be dismissed. 

58. Before leaving the case, however, I would say this.  During the course of submissions I offered a clear view to each of the two parents that it was they who had primary responsibility to sort matters out in a more helpful, ordinary and less intense way for their young boy.  The primary responsibility for that falls on the mother.  She has the sole care of B.  It is she who has been found by two judges now to be the substantial part of the problem, assisted and encouraged, on Judge Hornby's finding and Judge Cryan's finding, by her partner. 

59. It is they who, on those findings, hold the key that might unlock matters for B.  It is not going to be easy for B in his own way, in his own time, unaided to say that he wants to see his father.  He needs every encouragement from his mother to deliver what she says is her position which is that he would benefit from seeing the father and that she, as she told us through her counsel today, accepts, not just in the forensic sense, but genuinely accepts, the findings that Judge Hornby made. 

60. Secondly, the father needs to read Judge Cryan's judgment again in the days or weeks after this hearing.  He needs to see what Judge Cryan said about him and see, perhaps with the help of his McKenzie friend, whether some or all of what Judge Cryan has described might be right.  It would be very helpful for him to do that.  It cannot do any harm for him to think that the problem is worse than he thinks it is.  It is better to try and solve a difficult problem and find it easier, than think that you have an easy problem and then go on to find that it is more difficult. 

61. The answer and the key, to a certain extent, is therefore also in the father's hands.  Options are limited, but the channel of communication offered by Mr A in the order made by Judge Cryan remains open.  The father has been critical of Mr A, but this is an example of Cafcass offering to be part of a unifying process.  Mr A is a skilled professional working in this area.  I would hope that the father, again when the dust has settled after this hearing, will look at this as being one of the few channels in which he can have some effective communication with B.  I hope that he will use it to speak to B in a language that B will understand that the father is transmitting a message which is on the same frequency as B is thinking, or said to be thinking at the moment.   This is likely to be more effective than imagining that the problem will all be well if the boy and the father meet. 
So with those words of advice, I return to my conclusion, which is that this appeal must be dismissed.

62. LORD JUSTICE MOORE-BICK:  I agree entirely with the judgment of McFarlane LJ.  I add a few words of my own because of the father's obvious disappointment at the outcome of Judge Cryan's decision and, indeed, the outcome of this appeal. 

63. Judge Cryan recorded the guardian's position before him as understanding well that "the aim of these proceedings must be to reestablish contact, if that is at all possible, without harm" to B.  That was the task which Judge Cryan set himself.  There is no answer in these cases which pleases everyone.  The judge had to find the least worse solution.  He said in terms that if there had been a less drastic order, he would have made it, but having regard to previous failed attempts to establish contact and to B's entrenched attitude, he concluded that there was no more proportionate solution that was available. 

64. That is a judgment which is part value judgment and part decision.  It is impossible, in my view, to say that it was wrong, so the appeal must be dismissed.

65. LORD JUSTICE LEWISON:  I agree that the appeal should be dismissed for the reasons given by my Lord, Lord Justice McFarlane.