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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> T (A Child), Re [2002] EWCA Civ 1736 (24 October 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/1736.html Cite as: [2003] 1 FCR 303, [2002] EWCA Civ 1736, [2003] 1 FLR 531 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(WILSON J)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE RIX
LADY JUSTICE ARDEN
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T (A CHILD) |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS J PARKER Q.C. AND MISS D. EATON (instructed by Messrs Collyer-Bristow, London, WC1) appeared on behalf of the Respondent
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Crown Copyright ©
"But I am clear that there was fault on both sides, albeit perhaps in unequal proportions. The father was insufficiently thoughtful of the mother's natural concerns in respect of arrangements for her young son. The mother came, so I believe, to look upon the father's contact as an unwelcome source of trouble and anxiety, albeit as something which she accepted had to take place and which JW enjoyed, and she was not motivated in any way to exceed the strict parameters of what had been ordered or agreed."
The regime sanctioned by Singer J took its final shape by an order of 21st October 1999, and that endured until the mother's current application to suspend contact which is still a live application.
"The last time I had seen JW -- that is 4th July -- he had been hugging and kissing me and telling me how much he loved and missed me."
That evidence was not challenged at the trial before Wilson J.
"When I tried to speak to JW in the car park he told me I was a liar, was drunk all the time and that nobody liked me. He told me never to call him again."
That tragic development inevitably led to a return to the court. The parties were before Bodey J on 1st August when he set the case over to 6th August. On 6th August the case was listed before Johnson J. He arranged for the senior children and family reporter in the Royal Courts of Justice, Mr John Mellor, to assist the court by talking to JW and to the parties. He subsequently gave evidence to the judge. I draw the following extract from the transcript:
"I found J to be a nine-year old boy, going on ten, very powerfully aligned with his mother, expressing a catalogue of criticisms of the father ... He talked about his father spending all day in bed (not telling the truth) being boring, taking J to places he didn't want to go to, sleeping all day, up all night, keeping him up all night. (He said): 'I wish he would give up and leave us alone.'"
In a subsequent answer to the judge, Mr Mellor added this:
"I asked JW to just imagine for a moment that his father did 'give up', as he put it, and didn't insist on continuing to meet with him. If that were the case I asked J, who he thought would be the happiest person in his whole family and he told me that was impossible to answer. I said: 'Why is it impossible to answer?' He said: 'Because everyone would be happy.' I said: 'Well, who's everyone?' He said: 'Well, by 'everyone' I mean mum, JJ', his grandfather, his grandmother, in fact everyone in his family. I asked whether anyone would be sad. He said: 'No, no one.'"
"In the court's opinion, the German courts' failure to hear the child reveals an insufficient involvement of the applicant in the access proceedings. It is essential that the competent courts give careful consideration to what lies in the best interest of the child after having had direct contact with the child. The Regional Court should not have been satisfied with the expert's vague statements about the risks inherent in questioning the child without even contemplating the possibility to take special arrangements in view of the child's young age."
The child in that case was 5. I continue the citation:
"In this context, the court attaches importance to the fact that the expert indicated that herself she had not asked the child about her father. Correct and complete information on the child's relationship to the applicant as the parent seeking access to the child is an indispensable prerequisite for establishing a child's true wishes and thereby striking a fair balance between the interests at stake."
"The court considers that, given the psychologist's rather superficial submissions in the first set of proceedings, the lapse of time and bearing in mind what was at stake in the proceedings, namely, the relations between a father and his child, the District Court should not have been satisfied with hearing only the child as to her wishes on the matter without having at its disposal psychological expert evidence in order to evaluate the child's seemingly firm wishes. Correct and complete information of the child's relationship with the applicant as the parent seeking access to the child is an indispensable prerequisite for establishing a child's true wishes and thereby striking a fair balance between the interests at state."
(a) supervised contact ended happily on 4th July;
(b) angry accusations of drink, drugs and guns were levelled on 27th July and 6th August;
(c) despite another period of successful supervised staying contact in August they revived with the new dimension of homosexuality on 23rd October. The father's failings could not provide the explanation. The chronology could only be explained by the mother's deliberate indoctrination.
"It is hard to describe P in appropriately measured terms; for in truth he is utterly unscrupulous and deeply unpleasant. It is humbug for P to claim that his report to Mr Finlan about the father in March 2001 was born of concern for JW. It was part of a campaign of revenge and reflected his conviction that loss of contact with JW would hurt the father just as much as, or probably more than, any multi-million dollar lawsuit."
By contrast, of the mother he said:
"P's malignity is obvious. But that the mother was malign was a charge which so distorted any proper overview of the case as almost to malign her."
"The main difficulty is the father's growing problem with alcohol and drugs. ... The only solution, as he ultimately conceded in his oral evidence, is for the father to conquer the problem. ... That conquest probably means total abstinence at any rate from alcohol."
Second, he found that the mother was basically honest and certainly not malign. Third, he found that Mrs Cordwell's assessment of alienation was flawed and to be discounted. Fourth, he found that JW's hostile attitude was to be explained by five factors. Those factors are set out in paragraph 80 of his judgment, which is in many ways the most important paragraph for our understanding of the judge's assessment:
"The crowning difficulty now lies in the hostile attitude of JW himself to the restoration of his relationship with the father. This presents an extraordinarily difficult problem which (it may be said) a judge with only legal qualifications is ill- equipped to resolve. I believe that JW's attitude is born of: (a) seeing the father in a bad condition in recent years; (b) blaming the father, to some extent unfairly, for the taunting which so cut into him at school; (c) sensing the increasing anxieties of his mother and maternal grandparents both towards contact and indeed towards these protracted proceedings (a point conceded by Miss Parker) with the good judgment which is her trademark; (d) resenting the heavy pressure to engage in contact, applied particularly in October 2001; and (e) fearing that (as he would see it) some deranged judge would accede to the father's application that he should reside in the US with him or at least that he should attend some school in England other than P."
"There may well come a time, perhaps in December, when I will direct the parents to instruct a top London consultant child psychiatrist to see JW and the parents and report to the court."
That instruction was much more urgently required. This was an exceptionally serious breakdown in one of JW's vital relationships.
" As to the adequacy of reasons, as has been said many times, this depends on the nature of the case: see for example Flannery at page 382. In the Eagil Trust case, Griffiths LJ stated that there was no duty on a Judge, in giving his reasons, to deal with every argument presented by Counsel in support of his case:
'When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted … (see Sachs LJ in Knight v Clifton [1971] 2 AER 378 at 392-393, [1971] Ch.700 at 721).'" (p.122).
"Amplification of reasons
The approach of the appellate court
"I am convinced that it is in JW's interest that his relationship with the father is somehow restored. Close links with both sides of a child's family are valuable for him during childhood and to take into adult life. Only in rare cases, of which this is not one, is that proposition displaced by other considerations. On the contrary, this father has in principle the capacity to make a contribution to JW's life which is well above average in terms of love, support, commitment and creative benevolence."
"(c) I hope that at the hearing in December it will be possible for one to order, whether by agreement or otherwise, limited face-to-face contact on one or two occasions in the succeeding weeks. Its success or otherwise will be surveyed at the hearing in about February 2003, at which I hope to chart a fuller and longer programme for face-to-face contact.
(d) How is JW to be brought to look more positively at a restoration of contact? There may well come a time, perhaps in December, when I will direct the parents to instruct a top London consultant child psychiatrist to see JW and the parents and report to the court; prior to that hearing the father should nominate three such psychiatrists, of which either the mother or I may choose one. But it would be wrong to burden JW with exposure to another professional at this stage, so soon after exposure to Mrs Cordwell and Dr Peden. For the time being I confine myself to this exhortation to the mother, to Mr Finlan and to Mr Hargreaves (to each of whom the mother is at liberty indeed is requested to show a copy of this judgment): please accept this judgment; accept that the issue of the father's contact with JW will not evaporate and that it will be far better for JW and your family if ultimately it can be resolved or partly resolved by agreement; and do your best during the next six months gently to inculcate in JW a realisation not only that he will resume contact with the father but that you consider it right that he should do so. The mother should file statements from Mr Finlan and Mr Hargreaves in respect of these matters prior to the hearing in December and they should attend the hearing in about February. "
Order: appeal allowed; no order for costs in this court or in the court below.