Lord Justice Munby :
- This is an appeal from a judgment and order of His Honour Judge Henderson on 11 August 2010. The judge was exercising his jurisdiction under Part II of the
Children
Act 1989 in the Dudley
County
Court.
The proceedings
related
to a little girl, then aged 3½, who I will
refer
to as
C.
The background
- The mother and the father
commenced
a
relationship
through the internet in the Spring of 2005. They began living together in Sweden in April 2005,
relocating
to this
country
in June 2006. Their daughter,
C,
was born in February 2007. In November 2008 the mother made an attempt on her life, following which she was hospitalised for a little over two weeks. On her discharge she went to live in a hostel. On 20 December 2008 there was an incident which led to a fact-finding hearing in June 2009.
The proceedings
- On 8 January 2009 the father issued proceedings in the
County
Court,
seeking
residence,
specific issue and prohibited steps orders. Directions were given by the District Judge on 16 January 2009; he made an interim
residence
order in favour of the father and ordered supervised
contact
three times a week at a
contact
centre.
I shall
return
later to deal in more detail with the history of
contact.
Further directions were given by the District Judge on 13 February 2009, by a
Recorder
on 20 April 2009 and by a
Circuit
Judge on 11 May 2009, with a view to a fact-finding hearing on 15 June 2009.
- The fact-finding hearing took place before Judge Henderson, who has
conducted
all subsequent hearings. Following a three day hearing, he gave judgment on 17 June 2009. He
rejected
the mother's allegations that the father had raped her: "I am satisfied that he did not ever rape her or attempt to rape her. I also
reject
the allegation that he
regularly
drank to excess." The allegations of rape, he said, were untrue and were made by the mother knowing that they were untrue. He found established
certain
cross-allegations
made by the father against the mother but said that "apart from the apparent suicide attempt, her behaviour as alleged does not go significantly beyond the behaviour of many people in decaying
relationships
and …, subject to any material that emerges from later assessments of the mother, are likely to have no great significance in terms of the
childcare
issues".
- On 7 August 2009 Judge Henderson directed that
C
be made a party and appointed a rule 9.5 guardian, Elspeth Bourne. Her
reports
are dated 16 February 2010, 3 June 2010 and 26 July 2010. By the same order the judge directed that Maria Mars, a
Chartered
Clinical
Psychologist, prepare a
report
in
respect
of the mother and the father. Her
report
is dated 26 January 2010. On 20 January 2010 the judge directed that Dr
Christopher
Fear, a
Consultant
Psychiatrist, was to prepare a psychiatric assessment of the mother. Dr Fear interviewed the mother on 10 March 2010; his
report
is dated 5 April 2010. On 22 February 2010 the judge gave permission for Jane
Chapman,
the
Centre
Director of Living Springs Family
Centre,
to
conduct
an assessment of
contact
between the mother and
C.
For this purpose she observed seven one-hour
contact
sessions between March and May 2010, the first on 20 March 2010 and the last on 4 May 2010. Her interim
report
is dated 5 April 2010, her final
report
10 May 2010.
- There was a further hearing before Judge Henderson on 7 June 2010. By then, all the
reports
were before the
court,
except only the guardian's final
report.
The mother agreed that there should be a
residence
order in favour of the father. Following the guardian's view, in preference to that of Mrs
Chapman,
the judge ordered that
contact
be suspended pending the final hearing: "It is plain that
recent
events have
caused
real
upset to
C's
equilibrium in
recent
times. So I shall suspend
contact
between now and then to protect her from further upset." But he emphasised that "My approach at the final hearing will be this: that
C
should see her mother
regularly,
unless there are powerful
reasons
why not."
- Judge Henderson was asked, but
refused,
to direct an adjournment of the final hearing – fixed for 9 August 2010 – either to permit Dr Fear to attend to give oral evidence or to allow for the instruction of a
child
psychologist to assess
C.
He described Dr Fear's evidence as "
really
part of the background." The doctor's absence, he said, would not in any significant sense damage the mother's
case,
and he was anxious, if at all possible, that the
case
be
resolved
as soon as possible. As far as any further assessment of
C
was
concerned,
he was, he said, "satisfied that there is nothing out of the ordinary in terms of
C's
recent
reactions
to events."
- The mother sought permission to appeal. Her application was
refused
on the papers and again, on
renewal,
by Wilson LJ on 27 July 2010: [2010]
EWCA
Civ
1155. In
relation
to the judge's
refusal
to direct a further assessment of
C,
in particular, as Wilson LJ put it, "to
contribute
to the debate about the possible link or otherwise between the deterioration in her behaviour and her
contact
with her mother," he observed that "It is in my experience
relatively
rare for a judge to feel the need to
commission
an expert appraisal of that sort in
relation
to the behaviour of a
child
as young as
C
and therefore as limited in her ability to express herself as
C
would be." He
concluded
by
commenting
that at the forthcoming hearing, and with the aid of oral evidence from Mrs
Chapman
and the guardian as well as the parents, the judge would have the opportunity to gauge the true extent of
C's
loss of emotional equilibrium in
recent
months, its significance and the
reasons
for it.
Contact
- It is
convenient
at this point to deal with the history of
contact
since the final breakdown of the parents'
relationship
in December 2008. There was no
contact
between the mother and
C
until the District Judge made the order on 16 January 2009 to which I have already
referred.
He ordered supervised
contact
three times a week, for 3 hours on each occasion, at a
contact
centre
in Stourbridge, the
cost
to be borne equally between the mother's public funding
certificate
and the father.
Contact
commenced
on 29 January 2009. On 20 April 2009 the
Recorder
increased
contact
to four times a week, still for 3 hours on each occasion. He fixed the father's
contribution
to the
cost
at £300 per week and directed the balance to be paid by the mother. Funding difficulties emerged in
relation
to the mother's public funding
certificate.
On 11 May 2009 the
Circuit
Judge directed
contact
three times a week for 2 hours on each occasion and partially
relaxed
the supervision
requirement.
- On 17 June 2009, at the
conclusion
of the fact-finding hearing, Judge Henderson directed
contact
four times a week for 2 hours on each occasion, the
costs
of three of these to be borne by the father. In July 2009 the venue for
contact
was moved to a
contact
centre
in
Coseley.
These arrangements were
continued
by Judge Henderson in the order he made on 7 August 2009. In the event, because of funding and other difficulties,
contact
actually took place only three times a week.
- On 29 September 2009 there was an incident at the
contact
centre
in
Coseley.
This led to a meeting at the
contact
centre
on 23 October 2009, the upshot of which was that
contact
was
reduced
to twice a week, although within a matter of days the
contact
centre
indicated that it
could
return
to three times a week. In fact it did not, because of funding issues. On 17 December 2009 the
contact
centre
refused
to arrange any further
contact
because of incidents arising between the mother and
C.
There was no further
contact
until 20 March 2010, when it
resumed,
supervised by Mrs
Chapman,
in accordance with the order Judge Henderson had made on 22 February 2010 for
contact
once a week for one hour. Mrs
Chapman
supervised and assessed
contact,
as I have said, on a total of seven occasions between then and May 2010. Since then there has been no direct
contact.
- Understandably we have not been taken through, or been asked to
read,
the voluminous
contact
notes. Mr Scott-Manderson tells us, and I entirely accept, that they show that
contact
was on many occasions a positive and enriching experience for both the mother and
C.
As against that, however, he has to acknowledge that there are many entries in the
contact
notes which show a more
concerning
picture. The father's witness statement
contains
an anthology of quotations,
referring
to
contact
sessions in July 2009, September 2009, November 2009 and December 2009 (two) which he says (and the passages he quotes bear this out) show that on occasions the mother has lost
control
of her emotions and failed to put
C's
needs above her own, in
circumstances
demonstrating, as he put it, that when the mother is upset she loses the ability to focus upon
C
and her needs.
The hearing before the judge
- The final hearing before Judge Henderson started on 9 August 2010 and lasted three days. The judge had before him the various
reports
I have mentioned and heard oral evidence from Mrs Mars, Mrs
Chapman,
both parents, and the guardian. We have a transcript of Mrs
Chapman's
evidence. The judge gave judgment on 11 August 2010. His order (erroneously dated 9 August 2010) provided that there be no direct
contact
until further order. But he ordered "indirect
contact
(including letters,
cards,
presents, photographs)." He also directed under section 91(14) of the
Children
Act 1989 that the mother might not make an application for direct
contact
without leave before 11 February 2012.
The expert evidence
- I should summarise the expert evidence which Judge Henderson had before him at the final hearing. I start with Mrs Mars. She describes herself as having many years' experience dealing with
children,
adolescents and adults, including parents who have suffered mental health breakdown and psychological difficulties. She summarised her
conclusions
in
relation
to the mother as follows:
"She
currently
presents as emotionally fragile, with a low self esteem; poor impulse
control
and intense anger. [She] is also presenting with personality difficulties which might affect her ability to form lasting and meaningful
relationship.
[She] has demonstrated that she has the ability to
recognise
and meet
C's
current
needs, but I am
concerned
that during episodes of intense anger, which seems to happen frequently, it appears that [her] judgment becomes impaired and she looses her
capacity
to think about her daughter and her daughter's needs. This poses a risk for
C."
- She added that the mother's
current
emotional state:
"is highly likely to impact on her ability to
consistently
meet her daughter's needs; and also her ability to develop trust and maintain healthy
relationship,
and
cope
with stressful situations."
- Dr Fear's
conclusion
was that:
"there is no evidence of on-going serious mental illness or of any serious mental illness in her life. She does not have a history of drug or alcohol misuse. There is evidence of emotionally unstable personality traits that are manifest predominantly when she is stressed."
He added:
"There is no evidence to suggest that [she] would intend her
child
any harm and, indeed, the information I have seen within the Trial Bundle would support a view that she has very deep feelings of affection for her daughter. At times when she is pressed or stressed, however, she is liable to the kind of emotional and behavioural explosions that have previously been documented and this tendency will
continue.
There is
clearly
a potential for the
child
to suffer as a
result
of witnessing or being
caught
up in such occurrences."
In answer to a question about the mother's
capacity
to engage in treatment or therapy, he wrote:
"As I have not diagnosed a specific
condition,
there is no particular treatment that is indicated. It is entirely possible for individuals with these personality traits to learn ways of overcoming them or to adjust to some of the issues from their past that have given rise to them. For this to happen, they have to engage in psychological therapy, with the most effective base for a
cognitive
based stratagem. This will allow them to
recognise
their automatic thoughts and automatic ways of
responding
when faced with
certain
situations and to modify them. I am unable to place a likely duration on such engagement as it would
rely
on [her]
recognising
that she has difficulties and
committing
herself to working with them. It
cannot
be enforced and should not be offered to her as something in which she must engage immediately so as to provide a favourable outcome to these Proceedings. Given my assessment of her, I would not
consider
that [she] has very much in the way of insight into the observations that have been accepted by the
Court."
- Mrs
Chapman
recorded
in her final
report
how
contact
had broken down on 1 October 2009 due to what she
reported
as the mother's aggressive and argumentative behaviour at the
contact
centre
in front of
C
and how on 17 December 2009 the manager of the
contact
centre
had advised that they were unable to facilitate
contact
because the mother's behaviour was detrimental to
C.
She
reported
in detail on the
contact
she had observed during the spring of 2010. She said that
C
was exhibiting an insecure and anxious pattern of attachment to her mother with an element of ambivalence. It was likely, she said, that the mother's disruptive behaviour at previous
contact
sessions had made
C
feel fearful and anxious that it might
re-occur,
producing ambivalence in her
responses
and mistrust of
closeness
and intimacy. She described how at
contact
C
was initially
reluctant
to be
close
to or
receive
affection from her mother, though once the structure of a planned activity was put in place
C
appeared able to
relax
with her mother and to
receive
affection. She described
C
as "
clearly
a vulnerable little girl" and expressed her belief that the mother had not always been aware of
C's
needs and the most appropriate manner in which to engage with her. She suggested that the mother
could
benefit from work being done with her in order to develop her understanding of attachment issues and some of the
reasons
for
C's
ambivalent
responses
to her. It would, she said, help to equip her with the necessary skills to handle these
responses
appropriately.
- She said that if her
relationship
with her mother was to be positively developed it was "important" for
C
that
contact
was
retained
at a
reasonable
level of frequency. The
contact
sessions should
remain
supervised. "It is essential that
C
has the
confidence
that she is supported appropriately in the
relationship
at the
current
time."
- Mrs
Chapman
considered
whether there were any other events or
changes
in
C's
circumstances
which might have
compounded
the situation. She speculated whether the introduction of the father's new partner (his former wife) and her daughter into
C's
life might have disrupted
C's
feelings of security and thus impacted on the quality of the
contact
sessions with her mother.
- She
concluded
that "it is difficult to accurately assess the attachment between
C
and her mother purely from observing the
contact
sessions, without being able to explore and understand the external issues which impact upon the situation." She added, "Exploration of these factors in order to gain a
clearer
understanding of their bearing upon the situation is essential and it is not possible to make such an important decision or
recommendation
with
regard
to the type and frequency of
C's
future
contact
with her mother unless this is undertaken."
- By the time she
came
to give her oral evidence Mrs
Chapman's
thinking had
changed
very significantly. She explained why:
"My main
concern
was the issue of [the father's] partner moving into the house. Having learned today that this wasn't something that happened swiftly but that obviously
C
had
contact
with [X] and her daughter over the last year for increasing periods of time and had the opportunity to know them and be
comfortable
with them, that does put a different
complex
on the situation
really.
So having learned that, I feel that that
clearly
wouldn't have been impacting on her behaviour in the way that I thought it may have done, and that would just leave me with serious
concerns
about the quality of the
contact
and I wouldn't be
recommending
that we
continue
to supervise it.
Q Because you said that the
relationship
between mother and …
C
is an extremely significant
relationship
and the decision to terminate any form of
contact
should not be taken without [extensive]
consideration
of all the
relevant
factors. Are you saying you want to … stop all
contact
with the mother?
A I feel that the
relevant
factors … have now been … satisfied with the more information today."
Asked whether she thought an expert, like a psychologist, ought to assess
C's
situation with her mother and her father, Mrs
Chapman
responded:
"I am aware that the Guardian has met with
C
with [the father] and obviously she's a very experienced lady in her field and she is
comfortable
that
C
is happy and settled in that environment with [him] and his partner, so I would feel that, you know, adequate investigation has been done in that area. You know, it's quite a serious decision to be getting a psychologist involved with a young
child
unnecessarily."
- In her
report
of 3 June 2010 the guardian
reported
what Mrs
Chapman
had said following observed
contact
on 27 April 2010:
""I do believe that these
contacts
are having a negative upon
C
… I agreed to do the extra session, but now having had time to
reflect
on yesterday's session, I'm not sure that it's in
C's
best interests … The
contact
yesterday was pretty
challenging
… it was the most
challenging
I've seen".
C
was described as (amongst other things) "ignoring mum, shouting and
crying"
and, apparently, when attempts were made to discipline by [mother],
C
wanted her father. Mrs
Chapman
advised that she did not feel
contact
would be in
C's
best interest if it impacted in this way upon
C."
- She expressed her own
conclusions
as follows:
"It is a matter of
concern
to me that following on from
contact
C
can
demonstrate such intense anger and defiant behaviour and I am not
certain
that there is any definitive explanation for such behaviour … I am unable to support a
continuation
of
contact
prior to any final hearing. I have
concerns
about the impact of
contact
on
C
at present and I am of the opinion that the ongoing issues appertaining to [the mother's] intense and deep seated hostility to [the father],
coupled
with on occasions, irrational and aggressive outburst and an inability to accept any
responsibility
for her behaviour will
require
further exploration at a full and final hearing before there is any
consideration
of the
reinstatement
of
contact."
- In her final
report
dated 26 July 2010, the guardian said that the mother:
"has at times used the process of
contact,
even under a supervised setting, to
continue
to berate [the father] and involve herself in ongoing disputes with
contact
centre
staff. [She] takes no
responsibility
for her actions, and states she has "never done
C
any harm" and I
remain
concerned
that [she] is unable to draw a line under her
relationship
with [the father] for the sake of the emotional well-being of her daughter. Even more worrying is [her]
continued
view that [he] is a violent rapist, despite the findings of the
Court
in June 2009 that the accusations were malicious. These accusations were of a very serious nature and would have had far
reaching
consequences
if found proven and I am
concerned
that should this view prevail it will
continue
to undermine the stability of the present family unit and
C's
future emotional well-being."
Her
recommendation
was as follows:
"the welfare of the
child
is paramount and I
continue
to be
concerned
in
respect
of [the mother's] inability to
contain
her emotions, particularly her dealings with
C.
I would
concur
with the view of the Psychologist and Psychiatrist that [she] should engage in psychological therapy …
I
recommend
that there is at present no further direct
contact
at this stage in order to give some
release
from the ongoing
Court
proceedings and would further invite the
Court
to
consider
a section 91(14). I would also
recommend
a
review
of matters in 18 months in order that [she] has the opportunity of benefiting from the work
recommended
by Dr Fear. In the meantime there should be indirect
contact
on a
regular
basis."
The judgment
- In his judgment, Judge Henderson said that:
"I approach this application, as I have said more than once before, on the following footing. My presumption is strongly in favour of face-to-face
contact
between a parent and
child
and that presumption will only be displaced by powerful evidence.
I have
considered
the welfare
check
list of the
Children
Act, the Human Rights Act and the UN
Convention
on the Rights of the
Child
in my analysis of this
case."
- Of the father he said this, having
referred
to the fact that
contact
had followed what he
called
"a declining trend in terms of duration and frequency":
"I
reject
without hesitation the
contention
that that
reduction
was a deliberate, manipulated,
reduction,
contrived
by the father who wanted to disrupt the mother's
contact
with their daughter. The father has
clearly
in my view demonstrated in all
respects
of his dealing with his daughter, a sensitivity to her needs which is exceptional. I have no doubt from what I've heard of and from him that he is genuinely understands the importance of
C's
mother in
C's
life, even if they don't at present meet face-to-face. He has done his best in the
circumstances
to keep the idea of her mother alive. A
concrete
illustration of his sensitivity to her needs is the
careful
and well thought-out way in which he
reintroduced
to the family his former wife and her daughter.
He [has] also
clearly
given great thought to preserving and nurturing
C's
French heritage and has maintained a
relationship
with the mother's family although that is
clearly
a delicate
relationship."
There has been no
challenge
to that, I must
return
to the point in due
course,
but at this stage I merely emphasise that it shows just how far
removed
from the typical 'intractable
contact'
case
this is.
- Judge Henderson was sympathetic to the mother's predicament. He
recognised
that there might be
cultural
differences – the mother is French – that, as he put it, might mean that her behaviour might be misinterpreted and that "what she might
regard
as no more than socially demonstrative behaviour in France might be misunderstood in this
country."
He also acknowledged how "stressful and demanding" an experience supervised
contact
is for any parent, all the more so for someone in her position. Nonetheless, he said, he was
"sure that the occasions when she's been
criticised
for loss of temper would demonstrate in any
culture
a significant loss of temper and
control
with
consequent
upset for a
child,
even a very young
child,
who heard or saw that happening."
- His
central
findings are set out in two passages in his judgment. The first
reads
as follows:
"She has been in a very difficult position in
relation
to my findings of fact, which in all substance went against her. She's in the
cleft
stick that she has to proceed knowing that everyone else would work on the basis of my findings and has
repeatedly
asserted that she is prepared to work on that basis herself. I believe that she has started to move in the direction she needs to, but I have no doubt that in her heart of hearts she maintains the original assertions that she made so that in that sense is in a very difficult position. In my view in her
current
state she would be bound to let
C
know her views if she became angry and lost self-
control,
as she has done on a number of occasions before. It would plainly
cause
enormous distress and
confusion
for this little girl to hear such things said by her mother about her father.
She told me that it was quite
clear
that the father did not want her in
C's
life. She accepted that in the past she had been angry with the father in front of
C.
However she does not
really
acknowledge [that is my view from observing her evidence and that of the Guardian, Jane
Chapman
and Maria Mars] the effect that those outbursts have had on
C."
- The other says this:
"The
real
reason
for the
contact
coming
to an end were two-fold: first the mother's behaviour in the
contact;
secondly
C's
response
to her mother.
It is important to note that much of the
contact
between
C
and her mother has been good and
constructive.
There have plainly been times when her mother has made
C
very happy to be with her. However there have been a significant number of episodes where either the mother has behaved in an angry way which would inevitably upset her daughter and/or her daughter has
responded
in a way that denotes some insecurity at least in
relation
to mother. That is a pattern, Jane
Chapman
told me, through
contact.
C
was often angry towards her mother and wary and watchful in
relation
to her."
- Judge Henderson then turned to
consider
the suggestion that problems in
relation
to
contact
on 27 April 2010 may have been linked to the fact that on 1 April 2010 the father's former wife and her daughter had moved into his household. Pointing to the fact that other
contact
meetings between those two dates had gone well, he said:
"I agree with the guardian's and Mrs
Chapman's
analysis that the difficulties at that
contact
were not due to the introduction of the new family but were due to difficulties in the
relationship
between
C
and her mother."
- The judge then
referred
to the evidence of Dr Fear, Mrs Mars and the guardian before turning to
comment
on Mrs
Chapman's
evidence. The point is important, so I set out the
relevant
part of the judgment:
"The Guardian has been
consistent
in her view in
recent
months that face-to-face
contact
needs to be suspended for a significant period of time, she says about 18 months and then, she says, it should be
reviewed
again.
By
contrast
Jane
Chapman
appeared to be supportive of
contact
continuing
for the mother. It became
clear
as I heard her evidence that her originally supportive view of the mother's application for
continuing
face-to-face
contact
was based on a misapprehension. She initially thought that the upset demonstrated most specifically on 28 April, might be explained away by a sudden
change
in
C's
home
circumstances
when the father's ex-wife and her daughter moved into his house. When she explored the matter further and I'm satisfied that this is the
correct
sequence of events, it became
clear
that the father had
cautiously
and
considerately
reintroduced
his former wife into his household following advice and paying very
close
attention to the needs of
C.
Having herself being satisfied of that Jane
Chapman
now rules out that as the
cause
of the difficulties at the end of April. Her evidence was all the more powerful because of her evident
reluctance
to make a
recommendation
that
cut
across the mother's wishes."
- Judge Henderson explained his
conclusions
as follows:
"I'm satisfied having heard those witnesses that face-to-face
contact
at this stage is likely to be significantly damaging to
C.
She needs a break to settle
I am satisfied that before
contact
could
be a straightforwardly
comfortable
and enjoyable experience for
C
the mother needs to
carry
out the work that is envisaged in particular by Maria Mars. She needs to deal with her poor impulse
control
and her management of stress.
I accept the guardian's evidence that it is appropriate in this
case
to say that there should be no face-to-face
contact
for a period of 18 months at least. [The father] seeks such an order for three years. I do not accept his argument."
He
concluded
by emphasising that there "must" be "significant" indirect
contact
during this period, adding:
"If after that period the mother
can
demonstrate that she has undertaken the therapy that is necessary and that
contact
consequently
with
C
can
be a
comfortable
experience then I expect steps to be taken to
reintroduce
face-to-face
contact
between
C
and her mother."
The appeal
- The mother's notice of appeal was filed on 31 August 2010. Permission was
refused
on the papers by Sir Mark Potter on 18 November 2010. In his written
reasons
he said:
"Having
read
all the
relevant
reports,
statement and previous procedural history, I do not
consider
there is any
reasonable
prospect of success. The judge's decision was in accordance with the preponderances of the expert evidence and suggestions of bias in some of the evidence are not made out. The grounds
rely
heavily on the quoted authorities, the gravamen of which was plainly before the judge. His failure to
refer
to them specifically does not mean he did not bear them in mind: see paras 4 and 5 of the judgement."
- The mother
renewed
her application. It
came
on for oral hearing before Sir Mark on 20 January
2011.
Having been addressed by the mother's
counsel,
Ms Marie-
Claire
Sparrow, he said he was prepared to give permission: [
2011]
EWCA
Civ
100. He added these observations:
"I have mentioned to Ms Sparrow the desirability of improving her
client's
prospects at the earliest possible moment by not
relying
on the
counselling
she has
received
to date as sufficient
compliance
with the
recommendations
of the experts but, if she
can,
to initiate the therapy which was advised by the experts in an effort to
reconcile
her to her past, or at any rate to eliminate its influence upon her temper and temperament. Those observations have been taken on board, I am sure."
- In fact, we were told, the mother has been
receiving
counselling
/ psychotherapy from a
Clinical
and Social Psychologist since early February
2011.
She had had six weekly sessions and was due to have four more. A brief
report
in March
2011
says that "she is working hard to
cope
with her difficult and painful situation and learning to look at the
reality
of it."
- The appeal
came
on for hearing before us on 17 March
2011.
All three protagonists now had the advantage of
representation
by Leading
Counsel,
Mr Marcus Scott-Manderson QC now leading Ms Sparrow and Mr
Charles
Geekie QC and Mr Stephen
Cobb
QC, leading Mrs Val
Cox,
appearing for,
respectively,
the father and the
child.
Mr Geekie, I should observe, appeared pro bono, for which he deserves his
client's
gratitude and our thanks.
The law
- Mr Scott-Manderson helpfully
rehearsed
for us the
relevant
Strasbourg jurisprudence, taking us to Elsholz v Germany (2002) 34 EHRR 58, [2000] 2 FLR 486, Gnahoré v France (2002) 34 EHRR 38, Scozzari and Giunta v Italy (2002) 35 EHRR 12, [2000] 2 FLR 771, Kosmopoulou v Greece [2004] 1 FLR 800, Görgülü v Germany [2004] 1 FLR 894 and
C
v Finland (2008) 46 EHRR 24, [2006] 2 FLR 597. Mr
Cobb
added a
reference
to Glaser v United Kingdom (2001) 33 EHRR 1, [2001] 1 FLR 153.
- The principles are not in doubt. The starting point (see Gnahoré v France [2004] 1 FLR 800, para [50]) is that:
"The mutual enjoyment by parent and
child
of each other's
company
constitutes
a fundamental element of family life."
and (see Görgülü v Germany [2004] 1 FLR 894, para [48]) that:
"it is in a
child's
interest for its family ties to be maintained, as severing such ties means
cutting
a
child
off from its roots, which
can
only be justified in very exceptional
circumstances."
- Kosmopoulou v Greece [2004] 1 FLR 800 makes
clear
(paras [43]-[44]) that these principles apply not merely to what we would
call
public law
cases
but also to private law
cases.
The
court
said (para [44]) that in private as well as in public law
cases:
"Art 8 includes a right for parents to have measures taken with a view to their being
reunited
with their
children,
and an obligation for the national authorities to take such measures."
Repeating
the substance of the language it had earlier used in Glaser v United Kingdom (2001) 33 EHRR 1, [2001] 1 FLR 153, para [66]), the
court
continued
(para [45]):
"However, the national authorities' obligation to take measures to facilitate
reunion
is not absolute, since the
reunion
of a parent with
children
who have lived for some time with the other parent may not be able to take place immediately and may
require
preparatory measures to be taken. The nature and extent of such preparation will depend on the
circumstances
of each
case,
but the understanding and
co-operation
of all
concerned
is always an important ingredient … the interests as well as the rights and freedoms of all
concerned
must be taken into account, and more particularly the best interests of the
child
and his or her rights under Art 8 of the
Convention.
Where
contact
with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them."
In Glaser v United Kingdom (2001) 33 EHRR 1, [2001] 1 FLR 153, para [66], the
court
had added:
"The key
consideration
is whether those authorities have taken all necessary steps to facilitate
contact
as
can
reasonably
be demanded in the special
circumstances
of each
case."
- The point about the
child's
welfare is
crucial.
It
reflects
the settled Strasbourg jurisprudence (see for example Scozzari and Giunta v Italy (2002) 35 EHRR 12, [2000] 2 FLR 771, para [169]) that a parent:
"
cannot
be entitled under Article 8 … to have such measures taken as would harm the
child's
health and development."
The point was elaborated in Gnahoré v France (2002) 34 EHRR 38, para [59]:
"The
Court
strongly emphasises that in
cases
of this kind the
child's
interest must have precedence over any other
consideration.
It must point out, however, that there is of
course
a double aspect to this interest.
On the one hand, there is no doubt that ensuring that the
child
grows up in a healthy environment falls within this interest and that Article 8
cannot
in any way entitle a parent to have such measures taken as would harm the
child's
health and development.
On the other hand, it is
clear
that it is nevertheless in the
child's
interest that the links between him and his family should be maintained except where the family is shown to be especially unworthy for that purpose; to break that link amounts to
cutting
the
child
off from his roots. It follows that the
child's
interest necessitates that only wholly exceptional
circumstances
may lead to a breaking of the family bond and that everything should be done to maintain personal
relations
and, where possible and when the occasion arises, to "
reconstitute"
the family."
Precisely the same point was made by Sedley LJ in In
re
F (Adult:
Court's
Jurisdiction) [2001] Fam 38, 57.
- Mr Scott-Manderson points to another key
component
of the Strasbourg jurisprudence in
relation
to private law
cases,
which I
can
take from
C
v Finland , para [60]:
"The … authorities enjoy a wide margin of appreciation, in particular when deciding on
custody.
However, a stricter scrutiny is
called
for as
regards
any further limitations, such as
restrictions
placed by those authorities on parental rights of access, and as
regards
any legal safeguards designed to secure an effective protection of the right of parents and
children
to
respect
for their family life. Such further limitations entail the danger that the family
relations
between a young
child
and one or both parents would be effectively
curtailed."
- He also
referred
us to passages in the
concurring
opinion of Judge Zupančič in Scozzari and Giunta v Italy (2002) 35 EHRR 12, [2000] 2 FLR 771, paras O-I5, O-I12-14, which although of great interest need not be set out in extenso, I
refer
only to what Judge Zupančič said at para O-I12:
"the ultimum
remedium
of interference is justified if (a) it is objectively in the best interests of the
child,
(b) it balances the rights of the parents (and other
close
relatives)
against the best interests of the
child
and (
c)
it demonstrably strives to
re-establish
the parent-
child
relationship."
I agree with Mr Scott-Manderson that this is a
convenient
and accurate summary of the Strasbourg jurisprudence.
- Unsurprisingly our domestic jurisprudence, if somewhat differently expressed, is to the same effect. The very partial anthology that follows
recites
some of the best known passages.
- In
Re
M (
Contact:
Supervision) [1998] 1 FLR 727, Ward LJ said (at 730) that:
"
contact
is almost always in the interests of a
child
and should not be prevented unless the order would hinder the welfare of the
child
…
contact
should not be prevented unless there are
cogent
reasons
for doing so."
He
referred
(at 733) to the observation of Sir Thomas Bingham MR in
Re
O (
Contact:
Imposition of
Conditions)
[1995] 2 FLR 124, at 129, that:
"The
courts
should not at all
readily
accept that the
child's
welfare will be injured by direct
contact.
Judging that question the
court
should take a medium-term and long-term view of the
child's
development and not accord excessive weight to what appear likely to be short-term or transient problems."
- In
Re
S (
Contact:
Promoting
Relationship
with Absent Parent) [2004]
EWCA
Civ
18, [2004] 1 FLR 1279, Dame Elizabeth Butler-Sloss P quoted (para [19]) what she had said in
Re
T (A Minor) (Parental
Responsibility:
Contact)
[1993] 2 FLR 450 at 459:
"'It is the general proposition, underpinned undoubtedly by the
Children
Act 1989 … that it is in the interests of a
child
to
retain
contact
with the parent with whom the
child
does not
reside.
The
courts
generally set their face against depriving a
child
of such
contact".
She also (para [22])
cited
with approval what Wall J (as he then was) had said in
Re
O (
Contact:
Withdrawal of Application) [2003] EWHC 3031 (Fam), [2004] 1 FLR 1258, para [6]:
"Unless there are
cogent
reasons
against it, the
children
of separated parents are entitled to know and have the love and society of both their parents. In particular, the
courts
recognise
the vital importance of the role of non-
resident
[parents] in the lives of their
children,
and only make orders terminating
contact
when there is no alternative."
She
continued
(para [32]) that:
"It is … most important that the attempt to promote
contact
between a
child
and the non-
resident
parent should not be abandoned until it is
clear
that the
child
will not benefit from
continuing
the attempt."
She warned (para [33]) against
coming
to a "premature" decision "to abandon all hope of achieving some
contact."
- In
Re
P (
Children)
[2008]
EWCA
Civ
1431, [2009] 1 FLR 1056, para [38], Ward LJ said that "
contact
should not be stopped unless it is the last
resort
for the judge" and (see para [36]) until "the judge has grappled with all the alternatives that were open to him."
- I do not propose to add to the jurisprudence or to attempt to state in my own words what has already been so
clearly
said by others. All I need do is to extract from the
case-law
to which I have
referred
the propositions upon which Mr Scott-Manderson places particular
reliance:
- The
court
should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
The grounds of appeal
- The mother's notice of appeal identifies seven grounds of appeal:
i) Ground 1: The judge failed to take into account the mother's rights under Article 8 and the "normal assumption" that a
child
would suffer if
contact
with the mother were denied.
Reference
in this
connection
was made to the decision of the Strasbourg
court
in
C
v Finland (2008) 46 EHRR 24, [2006] 2 FLR 597, and to my own judgment in
Re
D (Intractable
Contact
Dispute: Publicity) [2004] EWHC 727 (Fam), [2004] 1 FLR 1226.
ii) Ground 2: The judge misdirected himself in not differentiating between his approach to
residence
and his approach to
contact,
failing to apply a stricter scrutiny test in
relation
to
restrictions
on parental
contact.
Reference
was again made to
C
v Finland and to
Re
D.
iii) Ground 3: The judge, by suspending
contact
for 18 months, failed to heed his positive duty to promote
contact
between the mother and
C
and in
reality
abandoned any possibility of a
relationship
between the mother and
C
for the foreseeable future,
contrary
to what this
court
had said in
Re
S (
Contact:
Promoting
Relationship
with Absent Parent) [2004]
EWCA
Civ
18, [2004] 1 FLR 1279.
iv) Ground 4: The judge failed to strike a proper balance between the
respective
interests and to look at the medium to long term possibilities.
Reference
was again made to
Re
S.
v) Ground 5: The judge, by suspending
contact
and making the section 91(14) order, failed to apply the stricter scrutiny test.
Reference
was made to the decisions of the Strasbourg
court
in Ignaccolo-Zenide v Romania (2001) 31 EHRR 7, Hansen v Turkey [2004] 1 FLR 142, Görgülü v Germany [2004] 1 FLR 894 and Zawadka v Poland [2005] 2 FLR 897.
vi) Ground 6: There were no exceptional
circumstances
to justify the judge's decision
vii) Ground 7: The decision process as a whole did not provide fairness,
contrary
to Articles 6 and 8, in that (a) the burden of proof was put on the mother to demonstrate that she would not
cause
problems for
C
through
contact,
(b) an application for a
child
psychologist to provide an independent view was
refused,
(
c)
an adjournment to
call
Dr Fear was
refused,
and (d) the guardian took a partisan view and showed a lack of independence.
The parties'
contentions
- Wisely, if I may say so, Mr Scott-Manderson did not seek to pursue the
complaint
of unfairness, the
criticisms
of the guardian, or those grounds of appeal which in
reality
involve a
challenge
to the earlier decision of Wilson LJ. Although he touched also on the other grounds, the focus of his submissions was the proposition that Judge Henderson had been wrong and premature to suspend
contact
in the absence of any
cogent
let alone exceptional
reasons
for doing so. The
consequence,
he said, was that the judge had in
reality
abandoned any possibility of a
relationship
between
C
and her mother.
- Pointing to what, I accept, was the judge's positive duty to be active, indeed
creative,
in identifying and exploring options even if they had not been suggested by any of the parties, Mr Scott-Manderson submitted – and this was his
central
contention
– that before getting to the point of suspending
contact
the judge should have directed the appointment of a further expert to undertake a family assessment, whether or not that had been suggested by the mother. He supplied us with the names and details of four experts, two psychologists and two psychiatrists, who, if instructed, would be in a position to
report
within the next three months or so. Mr Scott-Manderson did not suggest that we should ourselves order
contact.
He invited us to set aside the judge's order and to direct an assessment, to include the father, as well as the mother and
C.
- Addressing the obvious question, what
could
such an assessment provide additional to what the
court
already has, what
could
a psychologist or psychiatrist give that has not already been given by, for instance, Mrs
Chapman
and the guardian, Mr Scott-Manderson submitted that such a person
could
bring to bear a different professional expertise which might provide an answer, or at least a better answer, to what he says is the key question, not yet
resolved:
why is
C
behaving as she is? That, he submits, is properly a question for a psychologist or psychiatrist, invaluable though the
contributions
of the other experts have been. (Dr Fear, as he points out, was instructed only in
relation
to the mother's mental health.) Understandably, he pointed to what Mrs
Chapman
had said in the passages in her
report
which I have quoted in paragraph 20.
- Mr Scott-Manderson pointed to
Re
S (
Contact:
Promoting
Relationship
with Absent Parent) [2004]
EWCA
Civ
18, [2004] 1 FLR 1279, paras [33]-[35], and
Re
P (
Children)
[2008]
EWCA
Civ
1431, [2009] 1 FLR 1056, paras [38]-[39], as examples of what he said were analogous
cases
in which this
court,
reversing
the trial judge, had directed further expert
reports
in situations where it
concluded
that judicial disengagement was premature. Thus in
Re
S, Dame Elizabeth Butler-Sloss P
referred
to a psychological assessment as "the possible key to a
reconsideration
of future
contact"
and said "What is needed in this
case
is a broad assessment of the
child
in the
context
of the family, that is to say the father, the mother, and the
child,
to gauge the depth of the hostility and the rancour from the failed
relationship
of the parents, the extent to which the
child
is saying what she has learnt from her mother and her own
concerns
about her father." The
child
in that
case,
I might add, was 6¾ years old. So here, says Mr Scott-Manderson, what is
required
is a broad assessment of the
child
in the
context
of the family, undertaken by a psychologist or psychiatrist, and it is premature to disengage before that has been done.
- The section 91(14) order was likewise, he submitted, a 'step too far' and should also be set aside. Mr Scott-Manderson
referred
in this
context
to the well-known guidelines set out by Butler-Sloss LJ in
Re
P (Section 91(14) Guidelines) (
Residence
and
Religious
Heritage) [1999] 2 FLR 573, 592-593. He drew attention in particular to guideline (4) – "The power is … to be used with great
care
and sparingly, the exception and not the rule" – and to guideline (7) – where (as here) there is no past history of making unreasonable applications, the
court
will need to be satisfied "first that the facts go beyond the
commonly
encountered need for a time to settle to a
regime
ordered by the
court
and the all too
common
situation where there is animosity between the adults in dispute … and secondly that there is a serious risk that, without the imposition of the
restriction,
the
child
or the primary
carers
will be subject to unacceptable strain."
- Mr Geekie and Mr
Cobb,
albeit from their different perspectives, made
common
cause.
Mr Geekie summarised the father's position as being that the order Judge Henderson had made was firmly founded on the evidence before him, that it was not plainly wrong, that the legal basis for the decision is sufficiently evident from the judgment and that the judge had applied the law
correctly.
Not least bearing in mind that the father was not antagonistic to
contact,
it is, he said, wrong to
characterise
what the judge was doing as an abandonment of
contact;
on the
contrary,
the order was, he submitted, part of an ongoing process to make
contact
work. He submitted that the section 91(14) order formed a
coherent
part of the judge's overall approach, being part of a process aimed at leading to future
contact
if at all possible. Judged from that perspective, he said, it
could
not be said that Judge Henderson was plainly wrong to make an order for a period which was, he submitted, proportionate to the needs of the
case.
- Mr
Cobb
submitted that the outcome far from being plainly wrong in fact
corresponded
with the guardian's
clear
recommendations
and was not
contra-indicated
by the other experts. There was indeed, he submitted, and as the judge said, "powerful" evidence for
concluding
that
contact
should be suspended. He said that the judge approached his task by
correctly
highlighting the importance of
contact,
indeed treating it as a "presumption". His
careful
analysis of the judgment demonstrated that the judge, even if he did not
refer
to it in detail, plainly had the 'welfare
checklist'
in section 1(3) of the 1989 Act very much in his mind. He emphasised the significance of the fact that this is not, on the judge's unchallenged findings, a
case
of an obdurate or obstructive parent seeking to deny
contact
to the other parent. He pointed also to the fact that the judge has maintained indirect
contact
at a high level and had
rejected
the father's suggestion that the section 91(14) order should be for a period of three years.
- On the latter point, Mr Geekie
referred
to Stringer v Stringer [2006]
EWCA
Civ
1617, [2007] 1 FLR 1532, para [10], as authority for the proposition that although it is not permissible to attach
conditions
to a section 91(14) order, it is permissible for a judge imposing such an order to identify a particular issue and to tell the litigant that, unless he
can
show that he has addressed it, any application for permission to apply to the
court
for further
relief
is unlikely to be successful. To the same effect see also
Re
S (Permission to Seek
Relief)
[2006]
EWCA
Civ
1190, [2007] 1 FLR 482, para [90], and
Re
J (A
Child)
(
Restriction
on Applications) [2007]
EWCA
Civ
906, [2008] 1 FLR 369, para [20].
- Mr Geekie and Mr
Cobb
also, and with understandable emphasis, pointed to the undesirable effect on
C
of any further assessment. Both the process of assessment, in which she was to be involved, and the inevitable further period of uncertainty and delay would lead, they said, to undesirable worries and tensions for both
C
and her father.
- Mr Scott-Manderson, in
reply,
encapsulated the issues when he submitted that it was an odd way to promote
contact
by stopping it and that the judge needed an extra assessment if he was to be fully informed before
coming
to such an important decision.
Discussion
- In my judgment, despite the attractive way in which Mr Scott-Manderson put her
case,
the mother's appeal must be dismissed, essentially for the
reasons
expressed by Mr Geekie and Mr
Cobb.
- Judge Henderson's starting point was,
correctly,
his
recognition
of the vital importance of
contact
and of the need to demonstrate very good grounds if it was to be suspended. His
reference
to a "presumption" set the tone for the
remainder
of his judgment and
certainly
cannot
be said to have set the test too low from the mother's perspective.
- It is asserted in the grounds of appeal that Judge Henderson failed to take into account the mother's rights under Article 8. At the
renewed
hearing before Sir Mark Potter, it was said that beyond a very brief
reference
to his having "
considered"
the Human Rights Act, there was nothing in his judgment to show that the judge had addressed his mind to either the mother's or
C's
rights under Article 8. There is, in my judgment, nothing in this point.
- In Piglowska v Piglowski [1999] 1 WLR 1360, 1372, Lord Hoffmann
referred
to the long-established principle that where
challenge
is made to the way in which the judge at first instance has exercised his discretion, an appellate
court
can
interfere only if the judge has exceeded "the generous ambit within which
reasonable
disagreement is possible" and is, in fact, "plainly wrong." He
continued:
"the appellate
court
must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of
credibility
and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts."
He went on:
"The exigencies of daily
courtroom
life are such that
reasons
for judgment will always be
capable
of having been better expressed … These
reasons
should be
read
on the assumption that, unless he has demonstrated the
contrary,
the judge knew how he should perform his functions and which matters he should take into account … An appellate
court
should
resist
the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to
claim
that he misdirected himself."
- The need for an appellate
court
to
respect
the trial judge's exercise of discretion was emphasised by Baroness Hale of Richmond in In
re
J (A
Child)
(
Custody
Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, para [12]. The importance of the principle that, unless he has demonstrated the
contrary,
it should be assumed that the trial judge knew how to perform his functions and which matters to take into account, has
recently
been
reiterated
by Wilson LJ in D MCG v Neath Talbot
County
Borough
Council
[2010]
EWCA
Civ
821, [2010] 2 FLR 1827, para [22].
- Judge Henderson
referred
to the
Convention.
He
referred
to the 'welfare
checklist'.
True it is that he did not discourse upon either the Strasbourg or the domestic jurisprudence, just as he did not in terms go through the various paragraphs of the 'welfare
checklist'
one by one. But there was no need for him to do so. He will have had the key principles well in mind. And there is nothing in his judgment to show that he did not. On the
contrary,
as Mr
Cobb's
careful
analysis of the judgment has demonstrated, Judge Henderson, as one would have expected, had the detail of the 'welfare
checklist'
very much in mind.
- As is evident both from the
course
of the proceedings and from his judgment, Judge Henderson approached this anxious
case
with great
care,
giving it the strict and anxious scrutiny that every such
case
demands. His
conclusions
were firmly and securely founded in the evidence, including but not limited to the evidence of the experts and the evidence and expert advice of an experienced guardian. By the end of Mrs
Chapman's
oral evidence, the expert evidence was
really
all pointing in the same direction. Expert evidence is, of
course,
never determinative, but in a
case
such as this a judge, if he is to depart from it, has to be able to identify appropriate
reasons
for doing so. Judge Henderson was unable to do so. He was, in my judgment, fully entitled to accept what was being said by Mrs Mars, by Mrs
Chapman
and by the guardian and, having done so, to decide as he did and for the
reasons
he gave.
- Judge Henderson was acutely
conscious
of the fact that in her
report
Mrs
Chapman
had adopted a rather different approach. In his judgment he examined
carefully
how, in the
course
of her oral evidence, she had
come
to
change
her mind. His analysis
cannot
be faulted. He was fully entitled to proceed thereafter, as he did, treating the essential
core
of Mrs
Chapman's
evidence on the
crucial
issue as being what she had said in the witness box and not, where it differed, what she had previously said in her
report.
And this, in my judgment, is the short answer to that part of Mr Scott-Manderson's submissions in which he sought to
rely
upon what Mrs
Chapman
had said in her
report
in support of his argument that a further expert assessment was
required.
- Nor
can
I accept Mr Scott-Manderson's
characterisation
of what Judge Henderson was doing as an abandonment of
contact.
On the
contrary
it was, as Mr Geekie submitted, part of an ongoing process to make
contact
work. The expert evidence had identified the difficulties which the mother had to address and which, as the judge was entitled to
conclude
in the light of all the evidence, she had to address before
contact
could
be
resumed.
Judge Henderson was, in effect, imposing a moratorium both on
contact
and on the litigation, to enable the mother to do – as she has now started to do – the work which is needed.
- The effect of that is to delay the
resumption
of
C's
relationship
with her mother. I accept, of
course,
that delay is, in principle, likely to be inimical to any
child's
welfare and that it is generally to be avoided. And I also accept, as Mr Scott-Manderson submits, that the passage of time
can
have irremediable
consequences
for the
relationship
between parent and
child.
But there are two
countervailing
factors that have to be borne in mind. In private law
cases,
just as in public law
cases,
planned and purposeful delay may be advantageous in the long run. And delay in a private law
context
may have very different
consequences
depending upon the attitude and behaviour of the other parent. In an intractable
contact
case,
where the other parent is more or less implacably opposed to and obstructive of
contact,
any delay may well have irretrievably damaging
consequences.
In such a
case,
every day that passes is likely to make it more and more difficult to
resume
contact.
But this is not such a
case.
The father is supportive of
contact
and there is ongoing indirect
contact.
- In my judgment, Judge Henderson was entitled to
conclude
that there needed to be a breathing space, just as he was entitled to
conclude
that the breathing space should be for 18 months rather than three years. Far from such delay being inimical to
C,
there was much material before the judge supporting his
conclusion
that it would, in the long run, be advantageous not to try and
resume
contact
until the mother had managed to address her problems. And as part of that overall process he was, in my judgment, entitled in accordance with established principles to make the section 91(14) order.
- Was Judge Henderson entitled to proceed in this way without
requiring
the further assessment for which Mr Scott-Manderson
contends?
In my judgment he was. The question at the end of the day is whether the judge had all the information, all the expert assistance, he
reasonably
required
before
coming
to a decision as important as one suspending
contact.
In my judgment, Judge Henderson was entitled to
conclude
that he did. He knew a lot about both the father and the mother. He had
come
to positive findings about the father which are not
challenged.
Mrs
Chapman
was no longer suggesting that the
cause
of
C's
behaviour was to be found in the
recent
changes
in the father's household. On the
contrary,
there was a mass of material, including
carefully
evidenced
reports
from various experts as well as the guardian, which more than justified the judge in
concluding
that the
cause
of the difficulties was located in the mother's personality. In these
circumstances
Judge Henderson was entitled to
conclude
that he had sufficient expert and other evidence upon which to proceed to judgment.
- At the end of the day, there was more than enough evidence to justify Judge Henderson's findings that face-to-face
contact
was likely at this stage to be significantly damaging to
C
and that the difficulties which had to be addressed
related
to the mother, just as there was sufficient material to indicate what it was that the mother needed to do if
contact
was to be
resumed.
Despite everything pressed upon us by Mr Scott-Manderson, I
remain
wholly unpersuaded that a further assessment of the kind he is proposing would have assisted Judge Henderson, told either the judge or the mother anything of substance that was not already apparent, or led to any different outcome. In my judgment, this appeal must be dismissed.
- That suffices to explain my
conclusion.
But there is a further point I should add. Suppose that Mr Scott-Manderson had been able to persuade us that Judge Henderson's
reasoning
was flawed in some way and that, in
consequence,
it was for this
court
to exercise its own discretion. What then? It does not follow, in my judgment, that it would have been right for us to direct the further assessment for which Mr Scott-Manderson
contends.
On the
contrary,
I would have declined to make any such order. Balancing, on the one hand, what I accept would be the undesirable effect on
C
of a further assessment – the uncertainty and delay, the worries and tensions for both
C
and her father – against, on the other hand, the unlikelihood that a further assessment would assist Judge Henderson or lead to any different outcome, the balance falls decisively against going down the route which Mr Scott-Manderson would have us travel.
- It is a bitter pill that the mother has to swallow. But she knows what she has to do. Further assessment would tell her nothing more, and would only delay things even further. In her own interests, as well as
C's,
she needs to
carry
out the work that Judge Henderson
referred
to. That, for the immediate future, is the only way forward. The
resumption
of
contact,
which is so much in
C's interests and which the mother so ardently desires, is more likely to be achieved by therapy than by further litigation at this stage.
Lord Justice Hooper :
- I agree.
Lord Justice Pill :
- I also agree.