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England and Wales High Court (Family Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> M v M [1999] EWHC Fam 837 (23 March 1999)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/1999/837.html
Cite as: [1999] EWHC Fam 837, [1999] 2 FLR 737, [1999] Fam Law 538

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JISCBAILII_CASE_FAMILY

Neutral Citation Number: [1999] EWHC Fam 837
CP 1380/98

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY

Royal Courts of Justice
London
23 March 1999

B e f o r e :

MR JUSTICE WILSON
____________________

In Re J.M. (a child)

____________________

(Transcribed from the official tape recording by
Barnett Lenton & Company,
61 Carey Street, London, WC2A 2JG
Telephone: 0171 405 2345
Facsimile: 0171 405 0306)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE WILSON: This case concerns a little girl, J, who was born on 30 March 1996 so is almost 3 years old. She lives with her mother, who is 21 years old, at an address in south London. J's father is 23 years old and lives with his parents and some of his brothers in another part of south London.
  2. The father, who was never married to the mother, applies for an order for direct contact between him and J and for a parental responsibility order referable to her. The mother, supported by the Official Solicitor who represents J, opposes an order for direct contact, instead suggesting only indirect contact, and also opposes the claim for a parental responsibility order.
  3. The circumstances are deeply tragic. In 1992, when he was 16, the father was injured whilst riding a motor bicycle. He sustained serious injuries to the brain. Even prior to the accident he had suffered learning disability, with a recorded IQ of 63, and had attended a special school. But his intellectual functioning has deteriorated since the accident. The most recent test registered his IQ at 54. He has a reading age of 8 years and a mathematical reasoning age of 6 years. He speaks in short staccato sentences, not easy for a stranger to understand. His capacity to understand and therefore to solve a problem is extremely limited. But it is the impairment of his memory which is the most debilitating legacy of the accident. He recalls very little of the past, just the odd flash. His brother L, an excellent witness, told me on the second day of the hearing that the father probably recalled only half of what had happened in court on the preceding day. The father often has difficulty in identifying the current date or even the year. He is a tall, strong, imposing young man; and the frustrations of his condition, which is unlikely to improve, hang heavily upon him. He is cared for, in circumstances of considerable difficulty and tension, by his father and his brothers and, subject to the fact that she is often in Malta from where the family originates, by his mother.
  4. It would be easy to allow compassion for the father and perception as to how his plight might best be alleviated subtly to skew this judgment. It is the welfare of J which must be the paramount consideration in the determination of both issues; and I must be fiercely loyal to that precept.
  5. The relationship between the parents, who never lived together, endured between about January 1995 and November 1996. If any woman could sustain an intimate life with this father, it was certainly not the mother, who was far too young and immature. As his brother L observed in evidence, any girlfriend of the father has also to be his carer. The mother was not expecting to fulfil that role and, not surprisingly, lacked the necessary reserves.
  6. The mother says that their relationship was punctuated with acts of extreme violence perpetrated upon her by the father. The father lacks the memory which would enable him to address the charge. As Miss Wingert, on behalf of the mother, fairly concedes, these unusual forensic circumstances require me to approach her client's evidence with caution. Nevertheless I am satisfied that it is very largely true. While admirably loyal to the father, both his father and L felt obliged to make concessions about his temperament which tend to confirm it. So do the mother's medical notes. Indeed, the perinatal notes indicate that within hours of J's birth the hospital called its security officers and alerted the police because the father was abusive and threatening towards the mother and the maternal grandmother in the maternity ward.
  7. I find that during the relationship there were a number of acts of violence perpetrated by the father upon the mother. Lacking any intellectual mechanism for resolving problems, the father resorted to what was so readily to hand, namely his physical strength. The violence has deadened the mother's feelings of love or even of concern for the father; and she is left with a real apprehension about further violent or irrational conduct, which is at heart objectively justified but which in her mind has fed upon itself and thereby now become even more hauntingly vivid.
  8. This is not a mother who has set her face against contact from the time when the relationship ended. Between November 1996 and August 1997 she brought J regularly to the father's family home. The father was naturally very proud of the baby and, with time on his hands, wanted to see more and more of her. He also found it difficult to accept the end of the relationship with the mother and hoped that, by seeing her on occasions of contact, he could revive it. The mother says, and I accept, that the father began to demand that she bring J to see him three times a week and that it was only in order to avoid a confrontation that she did so with such frequency.
  9. Once, in about July 1997, when the mother was ill and so unable to take J to his home, the father telephoned and, according to the mother, threatened to kill her and take J from her. Contact ceased and in August 1997 the mother obtained a non-molestation order against the father. The order expired on 1 March 1998 and Miss Rayson, on behalf of the father, stresses that there was no breach of it and asks me to infer that her client had sufficient capacity both to understand the order and to resolve to obey it.
  10. In October 1997 the father issued the current applications and, at the first appointment in November 1997, agreement was reached that he should have contact with J at a contact centre. During the following 3 months there were about ten occasions of contact there. On the first occasion the mother attempted to leave J with the father but she cried so bitterly that the mother had quickly to return. She was present throughout the remainder of that and all the subsequent visits; and it seems that at any rate then, over a year ago, the mother's presence was essential to the success of the contact. In their records the officers of the centre wrote that the contact occasions went well and that the father played well with J. Miss Rayson relies heavily on these conclusions and, although the officers were not closely supervising the contact and their ability to appraise it may have been limited, I think that she is entitled to do so.
  11. For a few weeks between about March and May 1998 contact took place again at the father's family home, mainly in the presence of the paternal grandfather or one of the father's brothers. It took place approximately every Saturday and every Sunday between about 11 am and 8.30 pm. One inference from the change of venue and the increase in frequency is that the contact was going well. But the mother says, and on balance I accept, that she agreed to the change in venue because she disliked the environment at the centre and that the frequency of contact was the product of her wish to appease the father rather than to confront him. The mother says that the contact back at the family home took place in an atmosphere of such intimidation and so close to violence, indeed on one occasion with actual violence between the father and one of the brothers, that soon she decided to stop it. She also says in particular that the father misused the contact periods so as to seek to control her and to inhibit her from pursuing an independent life and that he threatened to kill her or to cut her face if she took up with another man.
  12. So the proceedings continued. In August 1998 a court welfare officer concluded that the father did not have the ability to understand the needs of a young child and so was incapable of meeting them; that he was prone to lose his temper and that on such occasions not even his family could easily contain him; and that J might be at risk were she to see him. Having read the report, a circuit judge transferred the proceedings to the High Court and invited the Official Solicitor to represent J.
  13. The Official Solicitor instructed Dr Clare Lucey, a consultant child psychiatrist, to interview the parties; and the court authorised her to arrange a period of contact for forensic purposes. Dr Lucey decided that contact should take place in her consulting rooms and in her presence on 9 February 1999. She conducted lengthy meetings with each parent on prior days and sought to gain the confidence of J during an extended visit to her home a week beforehand. The mother was distinctly resistant to the proposal of a contact session but reluctantly accepted it.
  14. The meeting on 9 February was a painful failure. Dr Lucey, who gave oral evidence by way of supplement to her report, described how the mother, the maternal grandmother and J arrived at her consulting rooms looking tense. It now transpires that the mother had told J on the previous evening that she would be seeing the father with Dr Lucey that day. Dr Lucey described how ill at ease the father seemed and how difficult he found it to accept the constraints which she sought to impose. She described the mother's hostility to the idea that the father should give any presents to J and how, eventually, she persuaded the parents to accept a compromise whereby J would take the presents and open them later.
  15. Dr Lucey describes the actual contact or attempt at contact as follows:
  16. "J entered the room still holding my hand. We advanced in. The father stood and called out to her "Hello, J, it's daddy". J looked at him and broke into tears. He continued, "It's me, it's daddy". I told him to sit and tried to divert J on to the toys available. There was a brief moment when she might have been distracted. However, she looked again at the father and the tears intensified into sobbing "I want mummy". I briefly tried more distraction but the child could not be consoled. I told the father that I was taking J back to her mother. He did not object. I took the main gift, leaving one behind. J came into my arms and I carried her while she continued to cry forcefully. The father continued to say, "J, it's daddy". He was visibly moved by the scene. The duration of contact was about 2 minutes.
    I returned with J to the other waiting room. The mother had gone outside for a cigarette. The grandmother took J in her arms but the childdid not stop crying until the mother returned. She was then comforted and it ceased …
    I then joined the father for about 40 minutes. The whole experience had been very distressing for him. He agreed it was right to bring J back to her mother, but it moved him deeply "that my daughter should cry when she sees me". The father's mood and behaviour were aroused and agitated during this conversation. He stood and paced the room and I had to urge him to sit many times. He alternated between anger and regret. I found it necessary to concentrate on helping him become calmer and not to add to his pain. I was not sure that he would be able to control his anger without loss of control. When agitated, the father spoke many times about the mother's boyfriend. He told me he knows she has one and has seen him. He expressed feelings of jealousy because this man occupies his place in both the mother's and J's hearts. He also made veiled threats to take J off the mother somehow …
    He asked me a view on 'what's the next step?' After asking this, the father stood up and did an odd sequence of step-like movements repeating many times "next step … next step". I wondered about sending gifts and receiving pictures and newsletters about how J is doing. The father seemed pleased with the idea, but then asked about setting up some more contact sessions … The father was more peaceful when we talked about how pretty J is. It took a while for the father to settle but when he was more at ease I drew the meeting to a close."
  17. Miss Rayson has presented the father's case for contact attractively because she has couched it in such moderate terms. She does not deny that the father's disability makes him unpredictable and occasionally aggressive. She stresses that, apart from one possible incident which the mother alleges to have taken place in March 1998, but of which she did not complain until December 1998 so which cannot have been very significant, there is no suggestion of violence on the part of the father towards J. And she says that the risk of indirect harm to J resulting from any outburst on her client's part will be accommodated by his acceptance of supervision of the contact, whether by a member of his family such as L or by an independent professional.
  18. The fact is that the experiment on 9 February 1999 proves all too clearly that the father is presently a direct source of fear and unsettlement for J. It is a tragedy that the presence of a loving father should have these effects. I have to form a view whether further contact would banish or ameliorate them or, on the other hand, intensify them. From where does the fear arise? Dr Lucey says that, if aggressive conduct on the father's part had indeed occurred in the presence of J early in 1998, ie around the time of her second birthday, she might now still have some memory of it. Apart from that, a small child living alone full-time with a young mother has a considerable capacity to imbibe her mother's feelings by a process akin to osmosis. Miss Rayson says simply – and persuasively – that the mother could have done more to protect J from exposure to her own feelings. For example, the mother has installed in her home a panic alarm button which connects with the police station; and J told Dr Lucey that she knew how to push the button if the father were to appear. The mother and maternal grandmother were also content to speak their mind about the father to Dr Lucey in J's presence. It is, I suspect, unrealistic to expect any sophisticated effort to protect the child from feelings so vividly entertained within the family.
  19. The other side of the equation is the father's capacity to handle the difficulties likely to re-emerge if contact was to be rearranged. The verdict has to be that, through no fault of his own, the father's capacity is nil. He would not be able to understand the difficulties, still less to devise a strategy for their resolution. As the mother herself correctly said in evidence, 'there is no reasoning with him'. J's distress would again distress and provoke him. Even on the occasions, such as that of his meeting with the Official Solicitor's representative, when it has been most in his interests to prove his capacity to keep calm, the father has erupted frighteningly both in actions and in words. Dr Lucey herself was struck by his fragility. He is also still angrily consumed with the failure of his relationship with the mother. I am sure that the father would have no intention of harming J but I dread to think of the emotional effect of one of his eruptions upon her. An essential ingredient of a successful occasion of contact must be the parent's ability to react appropriately to the situation and to the child.
  20. Back in November 1997 the attempt at contact other than in the mother's presence was swiftly abandoned. And as recently as 9 February 1999 the expertise of Dr Lucey was not enough to secure success for the experiment of contact in the mother's absence. Indeed afterwards not even the maternal grandmother could rescue J from her distress; the mother alone could do so.
  21. The mother is no longer prepared to participate personally during the occasions of contact. I have to say, perhaps reluctantly, that in the light of the history I do not regard it as unreasonable for her to adopt that position, which is to be differentiated from the position, so fully analysed in recent jurisprudence, of a mother who refuses to comply with an order for the production of a child for periods of contact. Yet, in the mother's absence, how could contact have even a worthwhile chance of success? As Dr Lucey says, J, not yet even at nursery school, is totally dependent on the mother and remains, in emotional terms, unweaned.
  22. I started my thinking about this case with the presumption that direct contact with the father would be of benefit to J. I believed, and still believe, that she should in principle grow up in the knowledge of him. I am clear that he loves her dearly and that it is important for her to feel his love and to understand that his present inadequacies are the product only of a cruel twist of fate. Yet I have come, sadly, to the clear conclusion that Dr Lucey, the Official Solicitor, the welfare officer and, for that matter, the mother herself are right to say that direct contact with the father, now or in the foreseeable future, would not be in J's interests. It would be dangerously destabilising for her, both directly and indirectly through its effect on the mother; and, irrelevant though this is to my inquiry, it would be profoundly unsatisfying to the father himself. Indirect contact will keep the relationship alive to some extent without forfeiting J's security. The details of it can be the subject of further submission. But the conduit for forward transmission in each direction will be the maternal grandmother. There could be presents at birthday and Christmas passing from the father through the grandmother to the child, and possibly soon even passing from the child through her to the father; cards and photographs of the father and his family should be sent occasionally to the child, which the mother should keep for her; and school and other reports, including reports of serious emergencies, and photographs of the child should be sent by the mother to the father.
  23. The application for a parental responsibility order is as much governed by a consideration of J's welfare as is the application for a contact order. The three factors famously identified by Balcombe LJ in Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151 at 158D in relation to the precursive parental rights order are conventionally the starting-point of the inquiry; but it is clear from, for example, Re H (Parental Responsibility) [1998] 1 FLR 855 that those factors are subordinate to the welfare principle and therefore must not divert attention from other considerations which bear upon the child's welfare.
  24. It is common ground that the first of Balcombe LJ's factors is present, that, to be specific, the father has shown a high degree of commitment to the child. Miss Wingert was wise not to argue that the father's interest in J was simply reflective of his need to regain and control the mother; there is an element of that but I am clear that there is also within him a strong natural bonding instinct towards the child. In relation to the second factor, namely the degree of current attachment with the child, the conclusion must be that there is a significant attachment, though currently of a very insecure character.
  25. But it is the third factor, namely the reasons of the father for applying for the order, which, when expanded to serve the demands of this particular inquiry, causes the most difficulty. Balcombe LJ's formulation presupposes that the father is capable of reason. Even more relevantly the statutory provisions themselves, namely section 4(1) and section 3(1) of the Children Act 1989, presuppose that the father is apt to be invested with responsibilities and is capable of exercising rights, of performing duties and of wielding powers in relation to the child. Parental responsibility, including as it does these rights, duties and powers, is not trivial. In Re S (Parental Responsibility) [1995] 2 FLR 648, Butler-Sloss LJ at 659D spoke of the 'weight' of the relevant duties.
  26. I ask whether it can be said with any degree of realism that this father's capacities are such that he should be invested with "responsibility" for J. It seems to me that he was only just across the borderline into being able to instruct lawyers to represent him in these proceedings. The general effect of the evidence is that, far from being able to exercise parental responsibility over another, for example to weigh up the merits of rival schools or to balance the potential benefits and risks of a surgical operation, this father requires something akin to parental responsibility to be exercised by others over himself.
  27. What is vital for J is that the father should be able to come to terms with my central decision that he should not have face-to-face contact with her. That will be hard enough for him, without my mixing my message to him by the grant of parental responsibility. In my judgment he would lack the capacity to pick out the subtle difference. I respect the weight of authority that misuse of a parental responsibility order can be controlled and that its spectre should not generally inhibit the making of an order. But those propositions presuppose the father's understanding of the concept of parental responsibility and of the likely repercussions of misuse.
  28. This father signed the Register of Births as being J's father. Last year the Lord Chancellor's Department issued a consultation paper, entitled "Procedures for the Determination of Paternity and on the Law of Parental Responsibility for Unmarried Fathers", in which it canvassed a reform of the law whereby fathers who sign the register should automatically acquire parental responsibility. I believe that such a reform would attract widespread support and may well be introduced. I consider that, while I must apply the existing law, I should take a sideways glance at that possibility. It is noticeable, however, that in paragraph 60 of the paper it is suggested that special provision might need to be made for the revocation of parental responsibility acquired in that way.
  29. I confess to having entertained a secret ambition that I would never be constrained to deny parental responsibility to a loving father. In the light of the tragedy which has broken the father's life, I feel a real sense of discomfort at a conclusion which does not at least give him that status. But my duty is to J and, in my judgment, it dictates otherwise.
  30. 12


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