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Re H-W (A Child) [2017] EWCA Civ 154

Judgment on appeal in intractable child arrangements dispute concerning contact between W, a nine year old child, and his father.

In this case, the Court of Appeal considered the appeal of a father against the decision of HHJ Newton that direct contact between the father and W, his nine year old son, should not take place, it not being in W's best interests. Judgment at first instance was handed down in the context of long running proceedings pertaining to contact between the father and W, ongoing since W was one year old, and which had come before HHJ Newton on several occasions in 2010 and in every year from 2012-2016.

Delivering the lead judgment of the Court, Black LJ dismissed the appeal on the following grounds: 

In the Court's view, the judge had considerable experience of the case, gathered over several years; applied the correct principles to the facts as she found them to be; and came to a decision that was open to her and "well supported" by the evidence. The appeal was accordingly dismissed.

Summary by Anita Rao, barrister, Field Court Chambers

Neutral Citation Number: [2017] EWCA Civ 154
Case No: B4/2Q16/2539 & 2541


Royal Courts of Justice
Strand. London. WC2A 2LL

Date: 30/03/2017



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RE: H-W (child)
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Appellant appeared in person
Mr Matthew Richardson
(instructed via the Bar Pro Bono Unit) for the Respondent

Hearing dates: 21st February 2017
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Judgment Approved by the court for handing down (subject to editorial corrections)

Lady Justice Black:

1. W is now 9 years old, There has been litigation about him between his parents almost continuously since he was under one year old, both at first instance and on appeal. I refer to him in this judgment as "W" because that is how he was referred to in the judgments given on a previous appeal to this court concerning him in March 2015.

2. The issue that has proved so intractable is W's contact with his father. The latest in a long line of orders about this was made by Her Honour Judge Newton on 17 May 2016. She dismissed the father's application for direct contact with W, provided for indirect contact between W and the father in the form of letters, cards and small presents, and made a family assistance order under section 16 of the Children Act 1989 requiring CAFCASS to make an officer available to advise, assist and befriend W and his parents. It is against that order that the father appealed to this court.

3. It will be noted that in this judgment I use the old term "contact", rather than the more proper, new terminology. I do so partly because the history with which I am concerned goes back to before the new terminology was introduced and also because it will serve as a convenient shorthand, enabling me to explain the issues more simply than might otherwise be possible in all the circumstances of this case.

4. I do not propose to rehearse the entire litigation history in this judgment and will give only sufficient outline to enable me to explain the father's challenge to Judge Newton's order and how I would determine it. However, I cannot avoid referring to earlier judgments in the case because, in a matter such as this, each new decision about the welfare of the child is taken against the background of the decisions taken earlier in the litigation process, and Judge Newton expressly said that her judgment of May 2016 should be read alongside the earlier judgments.

5. W's mother and father began their relationship in May 2005. It was relatively short-lived. They finally broke up in around October 2007, W having been born in the July of that year. The mother has two older children, both girls, by other fathers. After the parents' separation, W continued to live with the mother and his half-sisters. In February 2008, the father issued an application for contact with him and, in April 2008, contact started at a Sure Start Centre. Between then and 2011, for the most part there was direct contact, always on a supervised or supported basis. The final session of direct contact took place at the start of September 2011. The father has been untiring since then in his efforts to have it restarted.
Fact finding hearing in 2010

6. For present purposes, the first noteworthy event in the litigation was a hearing before District Judge Fairclough in the early spring of 2010, which resulted in over a dozen adverse findings about the father's behaviour towards the mother and her daughters. The father appealed against those findings to HHJ Newton, for the most part unsuccessfully, although one finding was overturned. The adverse findings that remained included, for example, that the father nipped and bit the mother and pulled her face and her hair, that he kicked her older children on the legs when he wanted the mother's attention, that he threatened to take W away from the mother, and that he unjustifiably referred matters to social services expressing concerns about the mother's care of W.

Welfare hearing in 2011

7. In July 2011, there was a five day hearing before District Judge Fairclough, at which he considered what orders would best serve W's welfare. He heard evidence from the parents, from workers from the contact organisation which had latterly been supervising the father's contact with W, from a psychologist, and from W's NYAS guardian.

8. There was a difference of opinion between the workers from the contact organisation and the NYAS guardian as to how contact was going. The contact organisation considered the contact to be positive, essentially raising no concerns about it. The guardian, who had also observed some of the contact sessions, had more anxieties. She considered that there were parts of the contact that went well, and things the father did well, but she had reservations about the relationship between father and son. In contrast to the contact supervisors, she had seen W in other settings and noted a distinct difference between his behaviour in contact and his behaviour in other situations. There was evidence that on occasions W had been reluctant to go in to start the contact session and had been distressed in the waiting room for quite a long time, on one occasion for nearly an hour. The district judge examined the possible reasons for this difference of opinion between the witnesses and looked critically at the conflicting evidence before preferring the evidence of the guardian. He summarised the position as follows at page 31 of his judgment:

"My view of contact is that it was a good quality, but there were aspects of that contact, about which the Guardian with her experience and knowledge of the broader picture, had cause to question and to express concern."

9. The district judge accepted the mother's evidence that W had been exhibiting adverse behaviour before contact and getting distressed, saying he did not want to go, and that she thought this was getting worse. He accepted, I think, on the basis of the mother's and the guardian's evidence, that W's reaction to going to contact suggested that he found aspects of contact distressing. He considered why there was a problem about contact and concluded that "although mother may try to be positive about contact, the reality is that she does not encourage it", although she had continued to take W for the sessions (welfare judgment page 32). He found that the mother was genuinely significantly anxious, and that her anxiety related to the father because, the district judge said, "of his conduct towards mother and her daughters and his pursuit of his application for contact with W in a manner which I previously described as 'relentless'" (page 33). He concluded:

"My judgment is that W's distressing behaviour as described by his mother and the Guardian is attributable to his perception of the anxieties of his mother, the conflict between his parents and mother's lack of enthusiasm for contact to take place." (page 34)

10. The district judge took the view that W's distress around contact was evidence of "serious emotional harm" and found it difficult to see W's behaviour improving in the short term because he thought the cause was deep-rooted, stemming from the relationship between the parents which he did not see improving (page 39). He balanced this emotional harm against the harm that W would suffer if he had no direct contact with the father or the father's family.

11. He considered it "possible but not certain" that therapy might assist the mother, finding that the "willingness of the mother to engage, timescale and resourcing remain questionable" (page 36). He said:

"I am far from convinced that mother has the capacity to change significantly in this area [i.e. in relation to her fear, anxiety and lack of genuine enthusiasm for contact] in the immediate future... It may well be that the protracted nature of these proceedings, coupled with the pressures which [s]he has felt by father's various applications ... make it difficult or impossible for her at this stage to see any possibility of a change of attitude, either by father or on her own part." (page 39, correction mine)

12. The district judge concluded that the proceedings needed to be brought to an end. He observed:

"The Guardian in her evidence suggested that [W] needs a respite, and that cessation of direct contact could promote the reintroduction of contact. Mother volunteered to the Guardian that should W say he wished to see his father she would not stand in his way. Father's views are different. He believes that if contact is now brought to an end that he will never see W again.

The history of the conflict between the two parents is not encouraging. In reaching my decision, I have taken into account the possibility, even the probability, that if direct contact is ended, at best it may be a long time before W has face-to-face contact with his father."

13. The district judge granted the father parental responsibility for W, dismissed his application for direct contact, and provided for indirect contact. At some point, although not mentioned in the district judge's judgment or order, the idea appears to have taken hold that his plan was for there to be a gap in contact for two years. This was the working assumption in the proceedings thereafter.

Appeal to Judge Newton in February 2012

14. The father appealed against District Judge Fairclough's order and HHJ Newton dismissed his appeal on 15 February 2012. Judge Newton recorded in her judgment that, whilst she could not reach any far-reaching conclusions on the basis of a single day's hearing, she had a sense that the father was approaching the difficult issue in a more objective and child focussed way than he had been in July 2010 when she had heard his previous appeal. She commented (page 9 of her judgment);

"The roots of the difficulties which W experiences in relation to contact lie, as is almost always the case in these unhappy disputes, in the dynamics of the relationship between the parents. It is the father and, to an extent, W who are paying the price for that dysfunction. The order of the learned District Judge provides a period of respite for the mother and for W, but I do not have any sense that this is a father who is going to slip away from his son's life, quite the contrary. In those circumstances, it would be wise for the mother to seek to address her own difficulties, at her own time and with a therapist she chooses and can trust. I hope that, in the years to come, the father will continue to move on, to give the mother the appropriate reassurance to enable her anxiety levels to reduce to a point where she can genuinely be relaxed about contact and can permit W to enjoy a relationship with his father. I am not suggesting that is going to happen tomorrow or next week or next month, but W is still only 4 years of age."

Refusal of permission to appeal by McFarlane LJ in July 2012
15. The father sought permission to bring a second appeal, to the Court of Appeal, but this was refused by McFarlane LI in July 2012. McFarlane LJ stressed that W would need to have a settled relationship with his father, just as he has one with his mother, unless there was a very good reason to the contrary, and said that the ball was in the mother's court during the anticipated two year gap in contact. He anticipated that the court would be looking in due course to see how she had used the time to improve W's life in so far as contact was concerned.

Other events between District Judge Fairclough's decision in 2011 and the hearing before Judge Newton in July 2014

16. The respite for the mother that District Judge Fairclough had intended did not come about. First there was the appeal to Judge Newton, dismissed in February 2012. Then, in March 2012, the paternal grandmother made an application for contact with W, ultimately dismissed. In July 2012, the mother was investigated by the police because the father made a complaint of perjury against her. I do not know whether this related to the mother's allegation that the father had been abusive to her in a telephone call, which had resulted in him receiving a caution but which was later proved to be false (see page 30 of the district judge's fact finding judgment), but it is only fair to the father to mention that that might have been the context for his perjury complaint. In January 2013, the father's solicitors wrote to the mother with a referral to family mediation. And then in March 2013, the father made a further application to the court. Judge Newton adjourned that until October 2013, taking the view that it was premature. In October, she ordered the preparation of a CAFCASS report.

17. The CAFCASS officer reported in February 2014 and, in the light of what he said, W was joined as a party to the proceedings, with the CAFCASS officer as his guardian. The case was not finally heard until July 2014, there having been an adjournment so that the CAFCASS officer could undertake a planned piece of work with W so as to inform his recommendations.

The hearing before Judge Newton in July 2014

18. At the hearing before Judge Newton in July 2014, the CAFCASS officer's view was that it was not feasible to try to embark on the process of establishing direct contact at that time. He told the court that when he tentatively began to introduce the topic of his father with W, W said, "I don't have a dad." When the subject was broached directly, W described himself as "moody", which the officer took to be "anxious/uncomfortable", when discussing his father. He said that he did not see any immediate or medium term prospect of W altering his view on corresponding with his father, let alone resuming attempts to visit. He did not think W was overtly hostile or feeling threatened by letters from the father, rather he simply found the whole question of his father "unsettling". The officer had found no evidence that the mother was being obstructive or undermining but hypothesised that W was old enough to recall and understand the tensions and anxieties which previously surrounded contact and to worry that they may recur if he were to resume visits.

19. There was evidence from W's school that following the officer's visit to see W there, W had been acutely distressed and took some weeks to settle.

20. Judge Newton concluded that W did not want to see the father and that if he were forced to do so at that juncture, he was likely to suffer emotional harm. She found that the father had genuinely done his best to behave properly and his indirect contact with W had been as good as it could have been. However, she found the mother "clearly still highly anxious and easily distressed", and considered that both she and the father seemed exhausted by the whole process. She recorded that the mother had attended 11 counselling sessions that she had organised for herself, which she had found broadly beneficial, but which had not allayed her anxieties about contact. Although the mother thought W did not pick up on her anxieties, the judge doubted that he was immune from them.

21. The father had made various suggestions for progressing matters which the judge considered as part of her review of the options that might be available to her. She considered arranging direct contact and simply presenting it to W, transferring residence to the father, imposing of shared residence arrangement, or adjourning the proceedings. She rejected each option as not in line with W's best interests. As to the adjournment option, she took the view that both parents were already under "inordinate stress" and that, certainly in the mother's case, a continuation of the proceedings would "only reinforce her sense that she is 'besieged' with the obvious risk of her opposition to direct contact becoming ever more entrenched and her increasing levels of anxiety having an adverse effect on W." Reluctantly, the judge decided that she could not make an order for direct contact, because it would be positively damaging to W. In concluding her judgment, she said:

"To be entirely frank I do not know when or if the right time will come for W to begin the process of deepening his relationship with his father so that indirect contact can move to direct contact. I remain of the view that that must be the ultimate aim."

22. The judge did, however, make a monitoring order with the objective of the CAFCASS officer relaying to the father how W was getting on and giving him information about W so that the father could write letters attuned to W.

The father's appeal against Judge Newton's decision: March 2015

23. The father appealed against Judge Newton's decision. The Court of Appeal dismissed his appeal in March 2015, Ryder LJ giving the lead judgment, with which King LJ and Richards LJ agreed. In his arguments in the present appeal, the father placed particular emphasis upon what Ryder LJ said towards the end of his extempore judgment (of which we have only a draft version). Ryder LJ took the view that Judge Newton's decision had the "all the character of a 'not yet' decision. That is, the strategy to allow time for healing had not by then been allowed to run its course." He concluded his judgment with the observation:

"The strategy was being pursued and being allowed to come to its conclusion. If the strategy has now failed, it will need expert evidence on the point. That evidence was not of course before the judge and no one including the guardian thought it necessary to ask for such evidence last July.

The circumstances are now changing, but that is no doubt sadly a matter that will come to be considered by a court in due course."

Commencement of the present proceedings; the CAFCASS officer's report of January 2016; the father's application for a psychological assessment

24. On 6 August 2015, the father issued a new application in relation to W. Giving directions on 11 November 2015, Judge Newton sought a section 7 report from the CAFCASS officer who had previously been involved. She directed that the report deal with the following matters:

"(1) Whether it is consistent with the child's welfare for him to be spoken to directly by CAFCASS for the purposes of ascertaining his wishes and feelings.

(2) What strategies might be utilised in the reintroduction of direct contact, that are consistent with the child's welfare.

(3) What strategies/guidance might assist in promoting indirect contact.

(4) Whether there is a need for further expert assistance to inform decisions in relation to future contact; including any need for an updated psychological assessment."

25. The CAFCASS officer reported in January 2016, having visited both parents and reintroduced himself to W. He found the parents' views unchanged from 2014, the father still appearing "defeated and bitter" as Judge Newton had found him to be in 2014, and the mother "besieged" by the ongoing process of court hearings. He found W "far from receptive to the prospect of speaking to" him. He thought W was displaying anxiety and decided not to speak to him at any length. Instead he prepared some work sheets for W to do with the staff at his school. W chose only to complete one part of the work, that being a letter to the judge in which he wrote that he did not want to see his father. He said: "I really hate all this and I just want to be left alone.. . this is all making me feel scared and frightened." Because it was uncharacteristic of W to express these sorts of sentiments, the CAFCASS officer thought what he said warranted particular consideration.

26. The CAFCASS report contains a review of various options for restarting contact, covering the father's proposal that W should merely be brought to see his father as a fait accompli, involving a "partner agency" such as a contact organisation, and a change of residence. The officer explained why he could not support any of the options. His advice was that, in W's interests, the proceedings, which he considered had gone on for too long, needed to end. They were, he thought, serving "no purpose other than to entrench positions and push further away any prospect of reconciliation" between parent and child. He recommended only indirect contact. In concluding, he said of expert evidence:

"It will be understood I do not believe additional expert opinion will progress this matter. My view is these proceedings need to be concluded."

27. It is of note that the CAFCASS officer said expressly that he had made his recommendation fully conscious of the views expressed by the Court of Appeal in March 2015.

28. On 22 January 2016, following the preparation of the CAFCASS report, a directions hearing took place before Judge Newton, with the CAFCASS officer in attendance. At that stage in the proceedings, the father was legally represented, although the mother was in person. Judge Newton's order recorded that the father "seeks a psychological assessment of the mother with a view to the mother undertaking any recommended therapy as a means of assisting her to promote direct contact." The father's formal application to that effect had been issued two days before. In it, in the section which requests brief details about the application that is being made and the reasons for it, it was said that the father "asserts that it is the negative and obstructive attitude of the mother towards the father and the notion of the child having any form of contact with the father (particularly direct contact) which is the central feature of this case." It was also "suggested" that the mother had not obtained expert support and guidance with regard to her state of mind as she should have done and "that further psychological assessment of her is essential to the determination of the current proceedings." Attached to the application was a "Proposal" for the instruction of a psychologist. This too was in terms of an assessment of the mother. For example, the proposal contained the following statement:

"it is the father's position that the Court should, as part of its duty to explore all available options to allow the child to have a relationship with him, make provision for further psychological assessment of the mother, given that a crucial feature of this case has always been the mother's obstructive and negative attitude towards the father and the notion of the child having a relationship with him, which has prevented meaningful progress being made, as well as influencing the attitude of the child against his father."

29. It seems that a draft proposed letter of instruction was available to Judge Newton. In it, the purpose of the instruction was said to be "undertaking a psychological assessment of [the mother]." In the section setting out the specific instructions to the psychologist, there were 8 points relating to the mother which the psychologist was to be asked to assess. As a ninth and final point, the psychologist was asked to say whether she considered that it would be appropriate for her also to undertake an assessment of, or work with, the child for the proceedings. There was also included the not unusual broader comment that the list of points was not meant to be exhaustive, and the psychologist was asked to comment on any other matters of relevance.

30. The mother requested Judge Newton to dismiss the proceedings summarily at the directions hearing, but the judge refused to do so and ordered a full hearing, which is what ultimately came before her in May 2016 and led to the order under appeal.

The hearing before Judge Newton in May 2016

31. In May 2016, Judge Newton heard oral evidence from both parents and from the CAFCASS officer. She said of the CAFCASS officer that he expressed his views more forcefully than he had done previously and that it was clear that he now felt "quite strongly about W's predicament." He, like the mother, considered that arranging contact in the teeth of W's opposition would be damaging and detrimental.

32. One of the disputes between the parents was whether what W was saying about his father actually reflected his true feelings, the father denying that it did. The judge traced the child's wishes and feelings through the history of the case. She noted that W's guardian had advised in 2011 that W could "take no more", and that he had said to the CAFCASS officer in 2014 that he did not have a dad and was acutely distressed and unsettled at that time following conversations about his father. She also noted W's 2016 letter to the judge which the CAFCASS officer considered showed W's "continuing level of distress". Having reminded herself about W's feelings over time, Judge Newton then made the following finding:

"35. I am driven to the conclusion that W has been consistent in the expression of his wishes and feelings over many years. His ability to express and explain himself has developed as his understanding has grown.

36. Insofar as it is the father's case that these are not W's true wishes and feelings, I am driven to the conclusion that he is sadly incorrect. Rightly or wrongly, I am left in no doubt that this is a true expression of W's wishes and feelings."

33. The judge considered the reasons why the child felt this way, specifically considering the father's submission that it was because he had been subjected to the malign influence of the mother. She did not accept the father's submission that the mother's position was one of "implacable hostility" or "intractable opposition". In her view, the father's behaviour, as found by the district judge, had left the mother "in some distress" to the point where she would prefer there to be no contact, but she still always obeyed court orders, even when the contact was, she contended, causing W distress. The judge found that W was likely to have picked up on conversations and the general atmosphere in the household, but that there was no evidence that the mother had sought to undermine the father's contact or failed to cooperate fully with indirect contact. She was satisfied, in fact, that the mother had "done her best" since the July 2014 hearing.

34. At §44 of her judgment, under the heading "Are there any ways forward?", Judge Newton looked at options for the future. She introduced this section with the words:

"I have tried to look individually at each of the father's suggested approaches and I have tried myself to devise strategies that might lead to the reintroduction of direct contact in a manner consistent with W's welfare."

35. She considered and rejected the following possibilities: moving W to live with the father, simply going ahead and setting up direct contact, and trying to get W speaking to his father on the telephone. As to the prospect of introducing direct contact gradually and carefully, she accepted the advice of the CAFCASS officer that it would cause W emotional harm. She said:

"[The CAFCASS officer] did not accept the proposition that 'short-term pain would lead to long-term gain'. In his advice, the evidence leads clearly to a conclusion that this would be a potentially protracted exercise with potential harm, including longstanding emotional harm, not just a short period of distress. I am afraid I am driven to agree."

36. Because they are at the centre of the father's grounds of appeal, I need to quote fully what the judge said about two further options, which was as follows:

"b. Psychological assessment of the mother. The mother is opposed to this on the basis that she has undertaken counselling and, with the passage of time, no longer feels psychologically vulnerable. As I have indicated, the continuation of these proceedings does impose a strain upon her, as no doubt it does upon the father who is desperate to see his son again. I am not persuaded that psychological assessment of the mother is 'necessary' within the rules to enable the court to make its decisions nor even that it might prove helpful at such a late stage in these protracted proceedings."

"e. The involvement of a third party. Again, that has the objections, on [the CAFCASS officer's] evidence of it being too informal. [The CAFCASS officer] simply did not share [the father's] confidence that such an approach could lead to any different outcome. It is particularly problematic that there is nobody in the father's family with whom W has an existing relationship. I cannot see that introducing a third party, even a professional, would move matters forward in the way the father hopes."

37. Judge Newton weighed up the welfare considerations in relatively short terms at the end of her judgment. She commenced by noting that W had been the object of proceedings and dispute between his parents more or less constantly throughout his nine years of life and that the mother's view was that every time she tried to move on, she was "dragged back to court". The judge said she had "lost count of the number of professionals this child has been interviewed by" and said she could not begin to calculate the number of court hearings. She remarked upon the "expenditure of significant resources". The crux of her decision is contained, I think, in §46 of her judgment:

"46. I have no reason to disagree with the firm and clear advice of an experienced CAFCASS officer. I must attach weight to W's wishes and feelings, now consistently expressed. Whilst I am disappointed that the monitoring order has proved so unsuccessful, I can now see no effective way forward in trying to establish safe and beneficial direct contact between W and his father at this stage."

38. She continued:

"47. At the end of the day, and after nearly 9 years of trying and the expenditure of significant resources, there comes a time when the courts can do no more. Sadly this has proven to be one of those exceptional cases where, notwithstanding all proportionate and reasonable steps consistent with A's welfare having been considered, there is simply no way forward."

"48. It gives me no pleasure to find that direct contact to his father does not accord with W's welfare at present, nor does the pursuit of yet further attempts to investigate whether it might do so in the near future."

The father's ground of appeal and submissions
39. The ground of appeal that the father has been permitted to pursue is his Ground 4. By this ground, as originally drafted, he sought to argue that Judge Newton had failed to approach her decision in line with Re W (Children) [2012] EWCA Civ 999 and to implement the "guidance and strategies" put forward by McFarlane LJ in his judgment of 2012 in which he refused permission to appeal at an earlier stage of the present case (see further above). He also argued that Judge Newton failed to address his application for the mother to undergo a psychological assessment/therapy and failed to attach weight to the mother's refusal to seek the help that she needed to enable her to meet W's needs.

40. I think it is fair to say that this ground of appeal subsequently evolved to accommodate what McFarlane LJ said in his judgment of 3 November 2016, when dealing with the father's renewed oral application for permission to appeal. In this way, a number of lines of argument emerged:

i) Assistance from an expert
Before McFarlane LJ, the father submitted that his application to Judge Newton for an expert to be instructed had been more widely cast, not relating simply to an assessment of the mother but seeking an expert to look at the case as a whole and, if necessary, to see $ as well as both parents. McFarlane LJ was not in any position, on a permission application, to determine whether the application had, in fact, been cast that widely, but, even if it had not, he was prepared to permit the father to argue that the judge should have considered the broader possibility of her own motion and failed to do so. The possible options for expert advice included, McFarlane LJ suggested, a preliminary paper exercise in which the psychologist or psychiatrist could use their expertise to see whether they could suggest a way forward or whether they shared the judge's conclusion that enough was enough. McFarlane LJ explained that he had in mind one of a small group of experts nationally who are used in highly conflicted cases. He referred back to Ryder la's contemplation, in March 2015, that an expert would have to be considered at the next stage (see above).

ii) Failure of the judge to consider Was interests in the longer term, as a young man and an adult
McFarlane LJ identified a second potential deficit in the judgment, namely a failure by the judge to consider whether it may be to W's long term benefit, including as a young man and an adult, to see whether there was a way in which the highly negative view that he has developed of his father could be turned around, notwithstanding the turmoil that might be caused by this.

iii) Failure to examine why the original strategy had gone wrong and to see whether it could be pursued again
A further possible defect was that the judge had not gone back to the original strategy of the case (a gap in contact, with the mother being expected to engage in therapy so as to put herself in a better position to support W's relationship with his father) to understand why it had not happened and to explore, again possibly with an expert, whether even at this late stage it could be pursued.

41. Following the hearing before McFarlane LJ, the father put in a further skeleton argument. He still relied upon certain parts of his original skeleton argument, which of course I have read, but he refined and focused his case in the later document. The father also made comprehensive oral submissions at the appeal hearing. Rather than set out his arguments more fully at this point in my judgment, I will leave them to appear from my discussion of them below. Although I will not refer to the entirety of what the father put before the court, I have taken all of it into account.


42. The father placed considerable weight in his submissions upon observations made by the Court of Appeal at various stages in this case, seeking to rely upon those observations as determining the approach that had to be taken to the case at first instance, and in particular by Judge Newton. This is not the place for a long explanation of the doctrine of precedent and other relevant legal concepts, but it needs to be understood that whilst some things that the Court of Appeal says in giving judgment are binding on courts generally and/or, where the particular litigation is continuing, on the judge who handles the proceedings subsequently at first instance, by no means everything is. Of course nobody would suggest that what McFarlane LJ said in 2012 when dealing with the father's application for permission to appeal (see §15 above), or what Ryder LJ said in March 2015 when dismissing the father's appeal (see §23 above), should simply be ignored, but their comments were not binding on Judge Newton. Even if what they said can properly be classed as "guidance" (the word used by the father in his most recent skeleton argument), that "guidance" was only one part of the material before Judge Newton. Neither Court of Appeal judge had as full a picture of the case as Judge Newton had by 2016. Neither could forecast what would happen in the period after they gave their judgments. Neither had the advantage that Judge Newton had of hearing oral evidence from the CAFCASS officer and the parents. In short, Judge Newton was not only free to consider all of the circumstances as they were in May 2016, and to determine for herself what was in W's best interests at that point, she was obliged to do so. I do not therefore consider there to be any force in the father's argument that Judge Newton unjustifiably failed to follow what the Court of Appeal had said.

43. Another of the father's complaints was that the mother did not fulfil her obligation to obtain appropriate therapy, so as to put herself in a position to help W to have contact with him, and further, that there was no proper information for the court about such therapy as she had had. He criticised Judge Newton for failing to follow this up as part of a critical review of why the original strategy was not working, why no progress towards contact was being made, and what could be done now to make the strategy work. In his submission, an expert should have been instructed to help with this examination of what had gone wrong and what could now be done to advance matters, advising generally (rather than simply assessing the mother), either with the benefit of seeing the participants or just on the papers.

44. Earlier, I went rather laboriously through the elements of the application that the father made to Judge Newton in January 2016 for an order that there be a psychological assessment (see §27 et seq). It can be seen from this that the primary focus of his formal application was upon the instruction of a psychologist to assess the mother, rather than a general expert to look at the case as a whole. It is true that there was reference to the possibility of an assessment of the child, as the final point in the list of matters referred to the psychologist in the proposed draft letter of instruction, but the express purpose of the instruction was not exploring that option but "undertaking a psychological assessment of [the mother]".

45. However, the father's argument that the judge had failed to give proper consideration to the instruction of a general expert was not, of course, dependent upon whether or not he had applied formally for the instruction of such an expert. He embraced the argument identified by McFarlane LJ as to the judge's own responsibility to consider seeking expert advice, perhaps in the form of preliminary advice based on the papers in the case. He also developed his argument about the question of expert evidence by taking us to what he said later on in the proceedings, in his statement of 15 March 2016, which was prepared at a time when he had solicitors acting for him. There, he listed his "suggested possible options for progression of contact". One of these was W speaking to someone who specialises in helping children to re-establish or maintain relationships with their non-resident parent. The father's submission was that this showed that he was inviting the court to consider commissioning more general expert advice, even though he never filed a formal application for a more general expert report and he sought to demonstrate, by comparing his statement with the judgment, that the judge failed to deal with this.

46. The relevant part of the father's statement (§14) read:

"c. Involvement of a third party
W could meet with me in the presence of someone with whom he is familiar, other than his mother or [the CAFCASS officer]. This might be a school teacher, or a member of W's extended family, or a family friend, or perhaps a member of my family.

d. Psvchologist/therapist
W might benefit from speaking to someone who specialises in helping children to re-establish or maintain relationships with their non-resident parent. This might provide reassurance to the Respondent to allow her to promote some form of contact in a safe environment, where she would be receiving support at the same time."

47. The father compared the list of possible approaches which Judge Newton considered in her §44 with the list of options he had set out in his §14, seeking to demonstrate that she had overlooked the option of obtaining general expert advice. What Judge Newton said in §44, in so far as it is relevant to this point, can be found set out at §35 above. The father argued that although the judge said, in the final sentence of §44e, that she could not see that "introducing a third party, even a professional" would move matters forward, she was not referring there to an expert of the type he was suggesting but was referring to a school teacher, which is one of the suggestions that he had made in his paragraph headed "involvement of a third party". So, in his submission, as the question of general expert advice did not appear in the judge's §44, it followed that she had failed to consider the possibility of obtaining such advice.

48. The father may or may not be correct in his interpretation of what "even a professional" means in §44e, but, in my view, it is not a point that takes him much further. When one reads the judgment as a whole, it is clear, in my view, that the judge did properly consider the possibility that an expert might assist here and, indeed, that she had given proper consideration to all available options.

49. It is important to recall that Judge Newton had been dealing with the matter for a considerable period of time by May 2016. Her accumulated knowledge about the circumstances, and about W and his parents, was set out in her earlier judgments to which she expressly referred. There is no doubt that she had as her objective the re-establishment of direct contact if that was possible (see, for example, what she said in 2014 about that being "the ultimate aim", §21 above). When she referred the case to CAFCASS in November 2015, she expressly asked about what strategies might be utilised in the reintroduction of direct contact and she was, importantly, asking for advice as to whether there was a need for further expert assistance, not only by way of an updated psychological assessment but also more generally. The directions that she gave at that juncture demonstrate clearly that she recognised the positive responsibility of the court in relation to re-establishing contact and appreciated the need to look at all the feasible means to achieve this. From her judgment of May 2016, it can be seen that she had continued, herself, to try "to devise strategies that might lead to the reintroduction of contact in a manner consistent with W's welfare" (her §44, quoted at my §33 above).

50. Before going on to look at some of the elements of the judge's decision in order to see whether it could be said that despite appreciating her duty to consider ways to re-establish contact, Judge Newton failed to fulfil it, I should make the following general point. If the father was going so far as to submit that the court has an obligation to try every single possibility that might, in theory, achieve direct contact, that does not accord with my understanding of the position. The obligation of the court is to make a decision about contact, with the child's welfare as its paramount consideration (section 1(1) of the Children Act 1989), and having regard in particular to the matters set out in section 1(3) of that Act. Within this framework, the task of the judge is to weigh up the pros and the cons of what might be possible ways forward, looking to see what chances they have of working, what benefits they might bring and what harm might be occasioned in the attempt. This exercise may lead to the abandonment of some options that might have looked worth pursuing. In this case, it led the judge to discard the possibility of seeking general expert advice, over and beyond that offered by the CAFCASS officer, even though this had not so far been tried and might have been the only remaining option. In my view, she was entitled to take this view of matters given the material already before her.

51. The advice that the judge had received from the CAFCASS officer, following his exploration of W's circumstances, was that he could not see how it was feasible to reintroduce direct contact, that the continuation of the proceedings was not in W's interests, and that what W required was that they come to an end. CAFCASS officers have particular expertise to offer the courts and this CAFCASS officer was (to quote from §42 of Judge Newton's judgment of July 2014) "a particularly experienced CAFCASS officer with over 20 years of analysing private law disputes affecting children". He had (ibid) "analysed the broader issues with considerable care" in 2014, returning to the case in 2015/16 with the advantage of his previous knowledge of it. His advice to the judge was, furthermore, that he did not believe that additional expert opinion would progress the matter. Although his statement to that effect comes at the end of his report, without express reasoning to support it, it was clearly the product of the adverse view he had formed, and set out in the body of his report, about the prospects for changing things and his concern about the impact upon W of the continuing proceedings which he considered needed to be concluded.

52. The judge was entitled to place reliance upon the CAFCASS officer's advice, which was the result of the application of his considerable professional expertise to his own investigations. Moreover, I get no sense from the judgment that Judge Newton followed him blindly; the judgment shows her evaluating the situation for herself. As is always the case, there were a number of influences upon her decision. These included the impact of the proceedings on W's life, directly and through his mother. The judge referred to the fact that he had been the object of proceedings since he was a matter of months old and said she had "lost count of the number of professionals this child has been interviewed by" and could not "begin to calculate the number of court hearings." (§45). Of considerable importance also were W's wishes and feelings, which were undoubtedly an obstacle to contact. The judge noted particularly their consistency over many years, tracing their course in her judgment. There was also the view of the CAFCASS officer that, whichever way it was approached, a move towards direct contact would cause W emotional harm and the judge's own view that the more limited option of telephone calls between W and his father would not work, given his present frame of mind.

53. The father submitted that the judge failed to give proper weight to W's future needs and to the implications for him as an adolescent and adult if the negative view he had of his father were allowed to continue. I cannot accept that the judge erred in this respect. She had, of course, directed herself correctly (§19) by reference to Re C (A Child) [2011] 2 FLR 912, her quotation from this authority including the proposition that the court should take a medium and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems; in my view, the judgment shows that she put this into practice. It is clear (see, for example, §44d of the judgment) that not only the short-term position but also the long-term position had been explored with the CAFCASS officer. He did not accept the proposition that in this case, "short-term pain would lead to long-term gain" and advised that "the evidence leads clearly to a conclusion that this would be a potentially protracted exercise with potential harm, including longstanding emotional harm, not just a short period of distress." She said she was "driven to agree" with that. Clearly, therefore, she did not focus only upon W's present emotional welfare. She was looking into the future, acknowledging that re-establishing direct contact would be beneficial to W if it was possible ("long-term gain") but finding further attempts at developing contact to be ruled out, save in the limited respects for which she made provision in her order, because there were no apparent ways in which W's view of his father could be improved sufficiently to move matters on and in view of the danger of W being caused enduring emotional harm.

54. There can be no doubt that the judge was alive to the possibility of seeking additional expert assistance of a general nature, as shown by her invitation to CAFCASS to advise whether there was a need for "further expert assistance ... including any need for an updated psychological assessment". However, given the circumstances as she had found them to be, she was entitled, in my view, to accept the CAFCASS officer's advice that further expert opinion would not help.

55. It is to be noted that, though (like the CAFCASS officer) the judge could "now see no effective way forward" (§46) and considered that it was not in W's interests to pursue yet further attempts to investigate whether direct contact might accord with his welfare in the near future (§48), she still did not give up on the relationship between father and son, thus demonstrating her recognition of its importance for W. Her decision was that there was no effective way forward "at this stage" but she made a family assistance order to help in establishing routines of communication between father and son, commenting that it would be a bridge with his father, and a means of him contacting his father if he wished to do so. She also refused to make an order under section 91(14) of the Children Act 1989, although I must say that I am unclear as to whether that was because there had been no formal application to that effect rather than because the judge had concluded that such an order was not justified.

56. There is one more argument of the father's which I should address specifically. In his skeleton argument, he submitted that Judge Newton failed to give weight to the mother's inability to prioritise W's needs above her own, arguing that she should have attached weight to the mother's failure to seek appropriate help to enable her to meet W's need for contact. As developed in his skeleton argument, it was the father's submission that this should have led either to an order for direct contact or a change of residence. Change of residence was not pursued in oral argument before us, understandably as it had been robustly rejected by the judge for good reasons (see §44a). But it remained part of the father's argument that the judge failed to look properly at the mother's approach, including examining why her mindset had not altered and how things might be changed.

57. It can be seen from the judgment that the judge did, in fact, look critically at the role the mother's views had played in W's presentation, in the section of her judgment entitled, "Why does W feel this way?" Her investigation of the mother's motivation demonstrates that she was very much alive to the mother's possible role in the contact problem. As I have set out above, she found that the mother had done her best since the July 2014 hearing, that this was not a case of the mother taking an implacably hostile approach to contact, and that it was not inherently unreasonable for the mother to take the position that arranging contact in the teeth of W's opposition would be damaging and detrimental given that that was a view shared by the experienced CAFCASS officer and previously by an experienced guardian for the child. This assessment the judge then incorporated in her overall review of the case and of the options that might be available (expressly including psychological assessment of the mother), before reaching her conclusion as to what was in W's best interests now. In the circumstances, I do not take the view that she wrongly ignored any aspect concerning the mother that should properly have been considered.

58. In conclusion therefore, I would not interfere with the decision taken by Judge Newton in this case. None of the father's arguments advanced on appeal undermine it, in my view. The judge had considerable experience of the case, gathered over several years. She applied the correct principles to the facts as she found them to be and came to a decision which was open to her and, indeed, well supported by the evidence in the case. I would therefore dismiss the father's appeal.

59. I should make clear that I reached this conclusion without taking into account the new material, in the form of an addendum report from CAFCASS dealing with their work with W after the July 2016 hearing, which the mother wished to adduce as part of the appeal. I considered that it would have been inappropriate, in the circumstances of this case, for us to have had regard to this untested evidence of events which post-dated Judge Newton's decision.

Lord Justice Flaux:

60. I agree.

Sir Timothy Lloyd:
61. I also agree.