MR JUSTICE COHEN:
- The father of HAK, born on 12 October 2008, so now aged a little over nine and a half seeks permission to appeal the order of HHJ Dowding, made on 30 January 2018.
- Mr A has the good fortune to be represented by Ms Wiley QC and Ms Gillman pro bono, and they have worked long and hard on his behalf.
- The matter came before me for directions, and on 31 May 2018 I adjourned to an oral hearing the application for permission to appeal against the refusal of direct contact to Mr A. I refused permission to appeal on a number of other grounds, including the suspended change of residence and the change of surname. I am asked, today, to reconsider my decision on the surname and I have declined to do so. There is no notice given to other parties of this request; it would be unreasonable for me to consider it in those circumstances, and in any event, I would decline to do so on its merits. That said, it does not cease as a point to be of some relevance, as I will explain in a moment.
- The background to the matter is that the parents lived together, that is the father Mr A and the mother, Mrs K as she now is, from 2003 until 2011. There was, I am told, an unsuccessful attempt to reconcile in 2012, but by early 2013 the mother was in a relationship with Mr K and they have subsequently married. They have one child and they are expecting another soon. Mr K has a couple of daughters by his previous marriage.
- Since the separation between Mr A and Mrs K, H has lived exclusively with her mother. It is a very sad fact that since 2013, almost without cease, the parties have been involved in litigation so that there has been five years of the most conflicted litigation with H at the centre of it.
- In 2013, proceedings were commenced in the Telford Magistrates' Court, and the justices made an order for supervised contact and made a series of findings against Mr A which I can summarise as being of bizarre or controlling behaviour. The father has been much criticised in this litigation for his failure to accept those findings, and it is plain that he still does not accept them, certainly the bulk of them.
- The order for contact was made in the face of resistance from H's mother. The contact reports of the supervised contact and indeed contact throughout this case can be summarised as being generally favourable.
- In 2014, the mother and Mr K took the preparatory steps before they issued, in early 2015, an application to adopt H. It is clear from the documents that I have seen, that they sought to extinguish the father's parental responsibility for H and remove him from any role in her life.
- In the normal way a Guardian was appointed, Ms C, as the reporting officer. I am told that without meeting the father, Ms C reported that the adoption should be granted, consent dispensed with, and that there should be no contact to Mr A. By the time that Ms C had reported, she had already seen the mother. It is part of the father's complaint that Ms C was appointed as Guardian in the subsequent Children Act proceedings. It is no reflection on her, but I can easily understand how to the father there would be a perception that her mind was already made up. If there are to be further proceedings, and I am absolutely not encouraging them, but if there are to be further proceedings I would respectfully suggest that consideration be given to the appointment of another Guardian.
- It took until mid-2016, and a number of hearings, before Mr and Mrs K withdrew their application. By then, the father says, much damage had been done, and H had been encouraged to call Mr K "daddy," and her father by his first name. I have to say that from my judicial perspective the application for the adoption order was misconceived, and in the context of this case, unfortunate. The father says that by 2016 any idea of contact between H and her father had been never actively encouraged by the mother. That is evidenced by a number of things, including the use of his first name by this still young child as the appropriate way to refer to her father, and the use of K as a surname. An assessment of the father's personality was prepared by Dr B, who deemed him no risk, and certainly I have read nothing to suggest that H is at any physical risk from the father.
- On 10 May 2016 the application for the adoption was withdrawn, and it was agreed between the parties that they would enter into Family Systems Therapy with two therapists. The objective was recorded in the order as:
"To improve the relationship between the birth parents, and to find
solutions to improve the relationship and promote contact between
H and her birth father, Mr A."
Despite the remit to include therapeutic work with both parents, that very quickly hit the buffers as Mrs K was adamant that she would not be in the same room as Mr A. She said that she would be unable to regulate her emotions sufficiently to even consider this to be possible. Nevertheless, despite this deeply unpromising start, the therapists were able to facilitate three periods of contact between November 2016 and January 2017, which apparently all went well. The therapeutic involvement extended into play therapy and what is described as Equine Facilitated Therapy. The contact reports were favourable, as the judge accepted, but they broke down when, first, in February 2017 and then in May 2017, H refused to get out of the car to see her father. Thus, January 2017 has been the last occasion when there has been successful face-to-face contact between father and daughter.
- By the time that Ms C was further reporting, and as 2017 progressed, H's views, if I can call them that, bearing in mind that she was still at that stage only eight, coming on to nine, were that she did not want to see her father. The father says this is unsurprising and is the result of four to five years' hostility towards him from Mr and Mrs K.
- The hearing in front of Judge Dowding extended over a number of days spread over a number of weeks. At the hearing, the father sought a variety of orders, including a change of name so as to make it clear that H's surname was his surname; a suspended change of residence; contact orders; and therapeutic intervention by the Family Separation Clinic. Judge Dowding, in her very long and careful judgment, started off at para.11, setting out the fundamental legal principles, and she said this:
"C: Contact is the right of the child, not the right of the parent.
D: The starting point is that it is almost always in the interests of a
child of separated parents, to have the best possible relationship with
the parent, with whom the child does not reside. In this connection, it is necessary to look beyond any short-term difficulties."
E: "Any order which terminates contact between child and her parent
would be exceptional and could be countenanced only through cogent
reasons where terminating contact. There is a positive obligation upon
the court to explore all available alternatives before reaching a conclusion
that contact should be terminated."
- The father says the judge paid lip service to those principles and/or simply never really grappled with the issues in this case. It was put very graphically by Ms Wiley, on the father's behalf, when she said this:
"H is bathed in hostility in the maternal home. How will she be
allowed to breathe?"
And it is said on behalf of the father that the documents show that the judge was plainly wrong in her assessment of Mr and Mrs K, who have, throughout, been hostile to the father. It is said on behalf of the father that this is a serious misjudgment by the judge.
- It is quite right to say that the judge formed, in broad terms, a favourable view of Mr and Mrs K, and an unfavourable view of the father. It is set out at paragraphs 103 -107 of the judgment. I am not going to read it all out, but I have those paragraphs firmly in my mind.
- The judge's order in respect of contact, was as follows: First, that there should be no direct contact; secondly, Skype or telephone contact should take place once a week, for an anticipated duration of twenty minutes, but to be guided by H's wishes as to the duration of any particular session. Thirdly, the father may be permitted to send monthly letters, cards and occasional gifts, and that Mr and Mrs K were to encourage but are not required, to compel H to reciprocate. The father's application for a suspended change of residence and for psychological assessments was refused.
- The sole issue in this hearing is, of course, that of direct contact. I refused permission on other grounds, and since I have criticised Mr and Mrs K for their adoption application, it is right that I should also criticise the father in respect of his application for a suspended residence order, which was, in my view, unrealistic, and would have led only to heighten the anxiety of Mrs K and H.
- The judge said this, at para. 145:
"I should very much like to see contact progressing to direct contact,
but I will not consider that it is in H's interests further to protract
these proceedings by reviewing progress over the course of the next year,
and nor do I consider that I can appropriately order immediate direct contact
at this juncture when H's last experience of seeing her father led her refusing, even, to get out of the car. I also find that H needs a break
from being the subject of litigation and from having her wishes and actions subjected to the scrutiny of an assortment of personnel".
The father says that the Mr and Mrs K will do nothing to progress confidence and the judge's confidence in them is already looking shaky.
- The judge went on to say this:
"However, whilst there is no application before the court by Mrs A,
(that is the father's mother) I consider that she potentially holds the key to resolving this matter." She noted that Mr and Mrs K
had no objection to direct contact between H and Mrs A, and
the judge expressed the hope that this contact can be fostered over the
next few months, with the intention that by the end of the year, that is
by the end of 2018, it should be possible to arrange a contact with Mr
A present with Mrs A.
- The judge went on at para. 146 to say that she should not specifically provide for the suggested progression to direct contact because the viability of the proposal is dependent on the good will of all concerned.
"And (said the judge), I would simply be setting up Mr A to fail
if I ordered direct contact prematurely, and to do so would cause huge
distress for H. This is a case where, in my judgment, there is simply no substitute for patience…….but there is also, in my judgment, a real prospect that if Mr A is able to be patient and re-focus on H, rather than upon his perception of himself as a victim of parental alienation, direct contact will resume and develop.
- Mr A says that the judge's optimism is already showing to be over optimistic. Skype contact is not taking place as frequently as the judge had hoped and anticipated, and Mrs A's contact has not happened. She is 79; she has breathing difficulties; travel is not easy for her; she lives in South London; Mr and Mrs K live-in the Birmingham area; they require Mrs A to travel up to their area, and they refuse to let her see H unsupervised. I do not know the rights and wrongs of this; I have only the account given to me on behalf of the father. But I would just say this: I urge Mr and Mrs K and Mrs A to break this deadlock which is so obviously contrary to H's interests. If Mrs A is not able to travel to H's area, then Mr and Mrs K should take it upon themselves to meet her in her area.
- The problem in this case is that there has been five years of litigation, huge ill will, multiple attempts at therapeutic interventions, the involvement of many professionals, and a complete lack of progress, and H has been caught in the middle of this conflict. It is not easy to see the way forward. H, inevitably, has sided with those with whom she is living. I need only remind Mr and Mrs K, and I am sure they are very aware of this, that H is the daughter of Mr A, and they owe it to her to promote him in a positive light. Sooner or later, if they do not do so, it is likely to come back and bite them. H plainly knows that Mr A is her biological father.
- The father wants H to attend a family separation clinic, but that is an entity which operates on the fundamental basis that it is a case of parental alienation syndrome and that is the very opposite of what the judge has found. I put this point to Ms Wiley and she did not flinch from saying that there would have to be a re-hearing of the factual basis of why it is that H is so resistant to contact. The judge found that a deeply unattractive solution, and I agree with her. The prospect of yet more highly conflictual litigation between these parents, with H in the middle, would in all probability be deeply damaging to H and cause further difficulty in her resuming a relationship with her father.
- It is my job to review the judge's decision and not to make a decision as if I am hearing this first time round. There are a number of very solid reasons for that, including the fact that I have seen no-one, in this case, other than Mr A, sitting quietly in front of me, while counsel speaks on his behalf. I can see no basis on which I could or should find that the judge was wrong.
- I need to add this: I have read and considered position statements on behalf of Mr and Mrs K and the Guardian. Mrs K is now expecting another child, due in or around November 2018 no doubt to her great and understandable delight. Of course, I hope all goes very well. Inevitably, this is a time of nervousness as well as excitement in the K family. I would do H no favours if I was to add to the tension by ordering a re-hearing of facts and another round of litigation. That is another reason why I think such a course would be counter-productive. But, with respect to Mr and Mrs K, they should not feel, and I have no idea whether they will or will not, that their family, with the arrival of the new baby, is complete, and there is no room in it for Mr A. He is, and remains, H's father, and has a role in her life as such. It is incumbent upon them to encourage the Skype contact and to encourage H to reply to communications from the father, however briefly, even if it is just a card, saying, "thank you."
- The Guardian, in her report, said at para. 28:
"It is highly likely that the child may reconcile with the parent on their
own volition and the alignment with the preferred parent will prove time limited."
I have to say that I am less confident than the Guardian, but I am clear that respite in this case is needed. I refuse permission to appeal.
- I very much hope that there is no further application for 12 months. I reject the written request made on behalf of Mr and Mrs K to make an order under s. 91 (14) of the Children Act. If there are unwarranted or unreasonable applications made, then it may very well be that such an order would be made. I shall order that there is a transcript of this judgment, to be prepared within the next 14 days, to go to all parties, and I direct that the Guardian serve a copy of the transcript also on Mrs A, so she can see what I have said about her contact with H.
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This transcript has been approved by the Judge.
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