D (A Child), Re

Neutral Citation Number: [2015] EWCA Civ 829 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM Cambridge County Court and Family Court His Honour Judge Yelton CB13PO1084 Case No: B4/2014/4074 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/07/2015 Before : LORD JUSTICE ELIAS and LADY JUSTICE KING - - - - - - - - - - - - - - - - - - - - - Between : Re D (a child) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The Appellant appeared in person The Respondent appeared in person Hearing date: Thursday 23rd July 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice King: 1. 2. This is an appeal by the appellant father against an order made by His Honour Judge Yelton on the 23 October 2014 whereby the judge dismissed the father’s application for a Child Arrangements Order and specifically an order for contact to his son, OD (born on the 13 February 2009) who is 6 years and 5 months. The issue before the court is whether the judge was wrong in concluding that OD’s welfare demands that, notwithstanding the draconian nature of such an order, he should not at present see his father, Background 3. 4. 5. The mother and father met in September 2006 and lived together between January 2007 and April 2009, separating when OD was only a few weeks old. Unhappily for OD, his parents’ animosity towards each other has meant that he has been at the centre of litigation from as long ago as February 2010 when he was just a year old. On the 30 July 2010, in what were then residence and contact proceedings, Dr Lucy Turner assessed the father, concluding that whilst he had no mental health and no personality disorder, his profile included “experiencing uncontrollable anger, being impulsive and having a tendency to be controlling”; she also said that he had “poor 6. 7. 8. 9. 10. 11. self understanding”. In the light of the report, the father agreed to undergo anger management and parenting classes and completed both. Unfortunately notwithstanding the work undertaken by the father the judge in these proceedings, having seen and heard the father give evidence and having read the papers in the case, regarded, some 4 years later, the comments of Dr Turner to continue to be justified. In the intervening period, the judge conscientiously worked towards frequent and good quality contact for OD. Contact progressed at first and by the middle of 2011 there was an order for alternate weekend staying contact. There were difficulties during 2012 when the matter came back before the court; OD had told his class teacher that his father had slapped him and there was a period when contact stopped due, the mother said, to OD’s reluctance to go and see his father. By November 2012, following a favourable CAFCASS report, the CAFCASS officer having been impressed by the quality of contact between OD and the father, a fresh order for alternate weekend staying contact was in place. However on the 26 June 2013 there was a referral to Social Services from OD’s nursery, OD having alleged to the Deputy Head that his father had hit him and “poked him in the eye”. This referral inevitably led to an initial assessment. The initial assessment was undertaken by the local authority and is dated 26 July 2013. The assessment recorded that OD had been seen on his own by the social worker and had repeated his allegation that his Dad had hit him and “sometimes pokes him in the eye”. OD twice asked not to be sent to his father’s. The mother was advised by social services to seek legal advice and the case was closed as the mother was seen to be taking “protective measures”, that is to say was refusing to allow contact. The report makes it clear that no further action was being taken only because the mother was taking protective action and that failure on her part to seek legal advice might lead to a child protection conference. Whilst the judge ultimately was not satisfied that the father had ever injured OD, believing that the mother too readily accepted “the literality” of what OD says (para 27); it is clear that on this occasion contact was suspended, effectively, on the direction of Social Services. The father applied to enforce the November 2012 order and the mother to vary it. At a direction hearing on the 3 December 2013, a s7 of the Children Act 1989 report was ordered by the court in respect of the cross applications. That report was prepared by Ms Kerrie Barratt, a copy of which is in the bundle. The report refers to the father as having been “difficult and confrontational” about arrangements to meet with her and underlines the father’s view that the failure in contact should be laid firmly at the mother’s door. In the body of her report, Ms Barratt records what, on any view, must be regarded as extremely disturbed behaviour on the part of OD. On the 15 January 2014 when his father was mentioned, he made a fist and punched himself and stated that “Daddy hurts him”, he said that if his father was put in a family picture he would “rub him out”. A similar reaction was observed on other occasions during the preparation of the report. Ms Barratt was particularly concerned about an occasion on the 28 January 2014; OD was alone with Ms Barrett and was drawing carefully and meticulously, when his father was mentioned he went to rip up the picture, to draw a black line on it and then to draw black marks on the sitting room walls. Ms Barratt described what happened as follows: “OD’s presentation indicated anger, distress and fear. He then pulled at my clothes quite anxiously and aggressively. When his mother came into the room, he kicked his mother in the stomach when she reprimanded him for his behaviour. OD threw his crayons over the floor in anger and determination to try and rip the picture he had worked hard to draw previously. The distress OD seems to be in when his father is mentioned is very concerning. The anxious and aggressive behaviours he displays are also very worrying. Such behaviour seems to occur only when his father is mentioned. OD appears to be communicating that he really does not wish to see his father. To do so would cause him further heightened levels of distress.” 12. Ms Barratt went onto consider whether or not OD had been coached to respond in such a way; Ms Barratt having observed this change of behaviour, did not believe this to be the case. Ms Barratt concluded that OD had experienced emotional harm as a result of his parents’ acrimonious relationship and that he presented as a very troubled little boy. So far as the father was concerned, she was of the view that he displayed, at times, a level of anger and aggression resulting in aggressive behaviour demonstrating a degree of risk which would be detrimental to OD if he were to be party to any such behaviour. Ms Barratt therefore, whilst acknowledging and emphasising with the father’s right to see his son, recommended that there be no contact. 13. The matter next came before Her Honour Judge Plumstead on 8 May 2014. Notwithstanding Ms Barrett’s report, HHJ Plumstead hoped to be able to use the father’s parents as a means of re-establishing contact. She made an order after much negotiation which was made by consent between the parties. The order set out a gradual process of reintroduction, first to the grandparents, with the hopes that this would lead to reintroduction of OD to his father. The order specified that the father was not to attend any of the contact sessions until the paternal grandparent’s third meeting with OD (at the earliest), and that all the parties were to be guided by Ms Barratt as to the appropriate rate of progression. 14. Ms Barratt addendum report dated the 4 July 2014, sets out the enormous amount of work she put in, and the extensive involvement she had with both sides of the family and with OD in her attempts to establish contact between OD and his paternal family in the light of the order of HHJ Plumstead. The judge dealt with this period in the briefest terms in the judgment now appealed, recording that contact took place with the grandparents on the 8 June 2014 but “then broke down with OD reporting to the social worker in strong terms that he did not want to see the father”. 15. The judge thereafter quoted Ms Barratt’s conclusion that: “The relationship between the mother and father is neither positive nor productive. The two are not able to communicate and the heightened levels of acrimony prevail.” 16. The judge dryly observed that this observation could be described as “an understatement”. Perusal of the report puts a considerable amount of flesh onto the bones of that brief recording. The first contact meeting with the grandparents ended when OD requesting them to call his mother to come and collect him. OD’s account was that his grandfather swore but, more significantly, that during the visit his grandparents had told him that they would “make him see his father”. The grandfather denies this. In an attempt to move matters forward, Ms Barratt held a meeting with the mother, father and grandparents. The meeting was not successful and one particularly negative and aggressive comment made by the father about the mother caused Ms Barratt serious alarm on behalf of the mother. Notwithstanding the failure of the meeting, she again tried to arrange the second supervised contact visit, this time the contact did not take place as OD refused to get out of the car. 17. Ms Barratt’s concerns at this time were heightened by the fact that, notwithstanding the very clear terms of the order and the obvious difficulties there were in getting OD to trust his grandparents and, it was hoped, in due course his father, both the father and the grandparents separately asked Ms Barrett if the father could attend the second contact visit. 18. It is of no surprise given the history, that before the court today, both the father and mother as litigants in person were keen to give their respective versions of what had gone wrong and why OD had ended up seriously distressed and refusing to see even his grandparents. 19. Ms Barratt expresses in her addendum firm views as to the adverse effect on OD of both the continuing proceedings and of OD of being repeatedly asked for his views saying: “At this juncture today we have a 5 year old boy who can display challenging behaviours in the company of his mother for whatever reason. We have a child who remains consistent in his views as to his father and now his views are the same in the respect of his grandparents. I do not think that forcing OD into any form of contact would be in his best interests for example how would this be managed, who would ensure he was safeguarded and how would his ongoing emotional needs be met. I do not think it is in his best interest to keep going over what he has already stated; that in itself surely can only be to his detriment.” 20. 21. In her July 2014 addendum, Ms Barratt repeated the view she had expressed in her first report that at present, contact is not in OD’s best interests and that she regarded it as unlikely that OD had been coached by his mother. Ms Barrett reiterated OD’s need for a resolution to the proceedings and that it was her opinion that to keep making him “relive and state his views could only in itself be abusive”. For the second time therefore Ms Barratt expressed the view that contact with his father is not in OD’s best interests. This then was the situation when the matter came on for trial; the father by then had not seen OD since June 2013 and all attempts to re- establish contact had failed. Analysis 22. The father, representing himself, has filed grounds of appeal and a skeleton argument. Whilst not in conventional form, rehearsing, as they do, grievances against the mother going back over many years; the basis of his complaint is twofold; first that the court should not prevent contact “because the parents do not get on”; and secondly that this is a case of what the father calls “PAS” (which must be taken to be a reference to so called parental alienation syndrome). His case is that the mother must not be allowed to prevent contact by dint of having alienating OD from his father. 23. On 1 April 2015 Christopher Clarke LJ gave the father permission to appeal at an oral hearing. The father has drawn the court’s attention to Christopher Clarke LJ’s judgment asking this court, in effect, to adopt its contents. The judgment is a 24. paradigm example of the difficulties in which a judge is placed when a litigant in person, either through lack of understanding of the process as a whole, or a misplaced belief that it is acceptable only to file documents which they believe will support their case, fails to put before the appeal court relevant material, and in particular the reports of experts upon which the judge at first instance relied or was influenced. Christopher Clark LJ did not therefore have available to him either of the reports of Ms Barrett or the Initial assessment of 26 July 2013 referred to above. As a consequence Christopher Clark LJ concluded that it was arguable that the judge had wrongly stopped contact because of the acrimonious relationship between the parents and he regarded the “key question” as whether the judge had taken “all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the case”. In this context he referred to the observations of Munby LJ (as he then was) in Re C (A Child) [2011] EWCA Civ App 541. Further, Christopher Clarke LJ, without the benefit of the relevant reports or assistance in the form of a more detailed judgment, said that the judge’s decision to stop contact was made: “without any recent input from any psychologist or, it appears, a social worker, without any family therapy or mediation and, it appears, without any attempt having been made at any stage to enforce the orders against the mother when she breeched them.” As a consequence, Christopher Clark LJ erroneously believed that contact was stopped by the judge “because of the negative influence of the mother’s views on the child” 25. Were the father represented, it could reasonably be anticipated that it would be submitted on his behalf, that the judgment of the judge does not adequately analyse the factors which led him to conclude that notwithstanding that contact is almost always in the interest of a child, this little boy of (then), still only 5 years of age, should not have contact with his father. In particular, the judge made no specific reference either to the welfare checklist; although a judge of his experience undoubtedly had the factors found in the welfare checklist firmly in mind, or to the analysis found within Ms Barratt’s s7 Children Act 1989 reports. 26. 27. 28. It must be borne in mind that this relatively brief judgment was the culmination of the judge’s involvement in proceedings in relation to this child and his family over a period of four years, he having been the allocated judge throughout save for the hearing in front of HHJ Plumstead referred to above. The judge was intimately acquainted with the history and of the repeated attempts by the court to try to create an environment where contact could safely take place in OD’s interest. It would undoubtedly have been preferable, in circumstances where the court was making so serious an order, for the judge to have set out in some detail, against the backdrop of the welfare checklist, the work and conclusions of Ms Barratt, relating them to his own observations of, and findings in relation to, the parties. Where legal aid is no longer available in even the most difficult contact cases, (absent allegations of violence), and the court therefore almost always has before it unrepresented parties, it is of particular importance that the lay parent has a clear understanding of the judge’s reasoning and can see from the judgment, no matter how crisply expressed, that the judge has had in mind the relevant legal principles. In relation to parental alienation the judge made a finding which accorded with that of Ms Barrett, namely that the mother had not ‘coached’ OD although he had “picked up” on the mother’s anxiety and negative perception of the father. That is a finding behind which this court cannot go and the appeal cannot succeed on a ground that the judge failed to take into account the allegation, repeated by the father today, that the mother is solely responsible for the breakdown in contact, she having poisoned OD’s mind against him. 29. 30. 31. 32. 33. 34. The real issue in my judgment is whether the judge, as submitted by the father, refused contact “because the parent’s couldn’t get on”. HHJ Plumstead and HHJ Yelton between them had tried for 4 years with the assistance of Miss Barrett to make contact work for OD. Even when Ms Barrett felt that the end of the road had come, HHJ Plumstead negotiated an imaginative programme geared to re-establish OD’s relationship with his paternal family. All this was no avail and the judge was of the view that the parents must share the blame for the failure to establish regular contact between father and son. It is undoubtedly the case that the inability of parents to behave in a civilised and co- operative manner towards each other for the sake of their children is not in itself a reason to refuse contact to an absent parent. Equally however there are cases, (fortunately for the children concerned, relatively few and far between), where the level of animosity between the parents and their consequent behaviour, either one towards the other, or to each other, is such that it has had a serious and deleterious effect on the child at the centre of the dispute. In the most extreme cases the harm caused to the child by the behaviour of their parents is such that the intervention of the local authority becomes necessary; in other cases a judge, with the child’s welfare as his or her paramount consideration, may, no matter how reluctantly, feel obligated to call a halt to contact for a period of time in order to relieve the child from the maelstrom of his parent’s destructive relationship. The judge, having had the benefit of Ms Barrett’s reports and having seen for himself in court the continuing acrimony between the parents, reluctantly concluded that this was one such case and that contact cannot at the moment work for OD “largely because their relationship between the parents is so obviously acrimonious and so clearly permeates all their dealings with each other.” His decision was made, not because the parents could not get on with each other, but because of the effect their war of attrition was having on their son. I remind myself that we are not here to reopen the findings of the judge. If he has made findings consistent with the evidence and without any misdirection, his decision must stand unless it is wrong. In my judgment, although the judgment is in certain respects lacking the detailed analysis I would have hoped to have seen, and in particular contains only minimal consideration of the reports of Ms Barratt, the judge has provided sufficient explanation, supported by the evidence, that at the present time, OD’s welfare demanded that there be no contact. In my judgment, having carefully read the reports of Ms Barrett and all the material provided to the court, I have concluded that had the judge in fact considered in more detail within his judgment, those reports, factoring in the very troubling presentation of OD and aggression of the father towards the mother, such an analysis would only have served to reinforce the conclusion he reached rather than undermining the order made. 35. I would accordingly dismiss the appeal. Post-script 36. In court today the mother expressed her regret that HHJ Plumstead’s plan to re- introduce contact through the paternal grandparents had failed and that she would have wished there to be contact between OD and his father. In his judgment the judge indicated that he would not expect another application from the father for 18 months to 2 years by “which time things may be different”. Inevitably in the 9 months it has taken for this appeal to come on, the parents have been able to focus only on the continuing litigation and as a consequence have been unable to reflect on their own individual responsibility for the situation in which OD now finds himself. OD has a further 11 years of childhood and there is still time for bridges to be built, I, for my part, hope that now that the litigation is over, the parents may take time to reflect and perhaps, in due course, have the determination and courage to find a way for OD to have a relationship with both sides of his family and in particular his father. Lord Justice Elias 37. I agree and endorse in particular the observations in the final paragraph of my Lady’s judgment.