This judgment is being handed down by Mr Justice Wall who gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mr Justice Wall:
Introduction
- In this case a father applies to withdraw his application for contact with his 12 year old son (identified in the attached judgment only as O). For that, he needs the court's permission. The application is not opposed either by the child's mother, or by CAFCASS Legal (the Children and Families Court Advisory and Support Service) which represents O.
- The result is that O will have no direct contact with his father for the foreseeable future, although the father is free to write letters and send presents and cards on the son's birthdays, as well as at Easter and Christmas. The judgment explains how this unhappy state of affairs has come about.
- Normally, where a parent wishes to discontinue proceedings, the court does not give a full judgment. It is usually sufficient simply to record that the parties are agreed that this is the right course. However, in this case, my reasons for granting the application are not the same as the father's reasons for making it, and I need to set them out.
- Furthermore, the case seems to me to illustrate the number of more general points relating to contact applications of which the public may not be fully aware. This is another reason for my decision to give my full reasons in open court.
- The normal rules about anonymity will apply to this judgment. I explain the reasons for the anonymity rule in paragraphs 9 to 12 of the judgment.
- The particular points which this case illustrates are, in my judgment, the following: -
The intractable nature of some contact disputes and the strength of the feelings they engender
(1) Disputes between separated parents over contact to their children are amongst the most difficult and sensitive cases which judges and magistrates have to hear. Nobody should pretend that they are easy, or that there is any one size fits all solution.
(2) Profound emotions are often aroused in contact proceedings. The children concerned become the battle ground on which are fought out the wrongs which the parents perceive each did to the other during the period they lived together. In the instant case, the father accuses the mother of child abuse, perverting the course of justice, defamation of character and perjury. A measure of O's distress at what was happening was his statement to the independent social worker appointed in the county court: "It is like a war. You know they are fighting and they are fighting over me".
The critical role of both parents in the lives of their children post separation
(3) The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The court's task, imposed by Parliament in section 1 of the Children Act 1989 in every case is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of every child to the best of its ability.
Terminating non-resident parents' contact with their children is a matter of last resort
(4) 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 fathers in the lives of their children, and only make orders terminating contact when there is no alternative.
Parental alienation
(5) The father asserts that this is a case in which the mother has deliberately alienated O from him. It is not. The principal reason that O is hostile to contact with his father is because of his father's behaviour, and not because his mother has influenced O against his father. Unfortunately, the father is quite unable to understand or accept this. The father's reliance in this case on the so called "parental alienation syndrome" is misplaced.
Blaming the system
(6) The court system for dealing with contact disputes has serious faults, which were identified and addressed in Chapter 10 of the report of the Children Act Sub-Committee (CASC) of the Lord Chancellor's Advisory Board entitled Making Contact Work. I discuss these further in paragraphs 83 to 86 of the judgment. In particular, the court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial. It tends to entrench parental attitudes rather than encouraging them to change. It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders.
Parental responsibility for the failure of contact
(7) Parents must, however, take their share of responsibility for the state of affairs they have created. Blaming the system, as the father does in this case, is no answer. He must shoulder his share of the responsibility for the state of affairs he has helped to bring about. All the evidence is that he has proved incapable of doing so.
Joint residence orders
(8) The suggestion, made by the father, that joint residence orders should be standard is not, in my judgment, an answer. There may well be more cases than we have up to now recognised in which joint residence orders are appropriate. The philosophy behind such orders (the exercise of ongoing parental responsibility by both parents post separation) is contained within the Children Act and is sound. But joint residence orders are not a panacea, and such an order would be quite inappropriate in this case.
Alternative methods of resolving contact disputes
(9) Fortunately, most separating parents are able to negotiate contact without the need to go to court. Contact disputes are best resolved outside the court system. Making Contact Work identified a number of ways in which this court be achieved.
(10) Contact in my experience works best when parents respect each other and are able to co-operate; where the children's loyalties are not torn, and where they can move between their parents without tension, unhappiness or fear of offending one parent or the other. Such cases rarely come to court.. The courts, therefore, have to deal with the cases in which there is no agreement. These are often, like the present case, the most intractable.
This case
(11) This is, accordingly, once of those rare cases in which an order for direct contact would be both ineffective and counter-productive. I reach that conclusion with regret. I am, however, reassured by the opinion of the child psychiatrist Dr. B that in late adolescence or early adulthood O is likely to revisit his decision not to have contact with his father. I hope the father also takes heed of Dr. B's message that if he maintains his hostile attitude to O's mother, O is likely to remain alienated from him..
The application
- In this case, the father of a 12 year old boy (whom I will call O) seeks the court's permission to withdraw his application for an order granting him direct contact with O. Pursuant to Rule 4.5(1) of the Family Proceedings Rules 1991 (FPR), an application to withdraw proceedings under the Children Act 1989 requires the permission of the court. It is a serious matter, and not a formality.
- The father in this case made his application for permission to withdraw on 24 November 2003, at what was intended to be the pre-hearing review of his application for contact, which was itself due to be heard over three days starting on 10 December 2003. Having heard the father in person, counsel for O's mother and counsel representing O instructed by the Legal Department of the Children and Families Court Advisory and Support Service (CAFCASS Legal) I decided that the father should have permission to withdraw his application, but that I would put into writing my reasons for granting permission. This I now do.
Publicity and the prohibition of any identification of the child
- This judgment is being handed down in open court and is a public document. In my judgment the issues it raises as identified in paragraph 6(1) to (11) warrant public discussion. The case has, however, been anonymised, and nothing may be published which identifies O whether by name or location.
- The principal reason judges and magistrates hear cases relating to children in private is to protect the children concerned from harmful publicity. Moreover, these are not judge made rules. Rule 4.16(7) of the Family Proceedings Rules 1991 (FPR) provide that unless the court otherwise directs, proceedings relating to children shall be heard in private. Secondly, Parliament, in section 97(2) of the Children Act 1989 has specifically provided that: -
No person shall publish any material which is intended, or likely to identify
(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act may be exercised by the court with respect to that or any other child; or
(b) an address or school as being that of a child involved in any such proceedings.
- Section 97(4) of the Children Act empowers the court, if satisfied that the welfare of the child requires it, to make an order dispensing with the requirements of section 97(2) to such extent as may be specified in the order. As Bennett J has demonstrated in the recent case of P v BW [2003] 3 FCR 523, both FPR 1991 rule 4.16(7) and section 97 are compatible with the fair trial provisions of Article 61) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
- As this judgment will demonstrate, the stress imposed on O by the dispute between his parents and the protracted nature of these proceedings has been substantial. I can think of nothing more damaging to O than to be the subject of publicity relating to their outcome. I am therefore quite satisfied that this is a case to which section 97(2) applies, and that an order prohibiting any identification of O is appropriate.
The facts
- O's parents were married in August 1978. O is their only child, born in December 1991. Following the breakdown of the marriage, the mother petitioned for divorce in December 1997. It appears that the divorce proceedings were contested, and that the father appealed unsuccessfully against the decree nisi, which was granted in the county court on 15 July 1998.
- Contact between O and his father initially took place by agreement, but on 31 July 1998, when O was six, the father made an application for increased contact, which was heard by the district judge in the county court. She directed that there should be staying contact between O and his father on alternate week-ends; staying contact for three weeks during the school summer holidays starting in 1999 and all other holidays to be shared equally. Christmas day was to be spent in alternate years with the father, also commencing in 1999. There was provision for telephone contact three times a week on those weeks when there was no staying contact and twice a week on those weeks when there was. There were some detailed directions as to implementation. The father's application for a prohibited steps order was refused.
- The father's case is that the terms of the order were never wholly followed, and on 26 March 1999, he applied to enforce it. That application came before the district judge for directions on 24 June 1999. She took an unusual course, which was subsequently the subject of criticism from the Court of Appeal. Instead of directing a report from the Court Welfare Service, she made an order joining O as a party to the proceedings. She appointed a solicitor to represent O, and that solicitor in turn appointed an independent social worker (Mr. H). Mr. H was given permission on 10 August 1999 to have access to all the court papers.
- There is no judgment from the district judge explaining why she took this course, but at a subsequent hearing on 1 March 2001, the circuit judge then hearing the case (Judge L) expressed the view that it was because the court had been sent a letter dated 31 March 1999 from O's school. A passage from that letter cited by the judge reads: -
He (O) then said, 'with dad, he rushes me off my feet. It's all rush, rush, rush. Dad says mum fills my head with rubbish, telling me all the wrong things. I feel I have a horrible life because of these two arguing. Dad says in the Easter holidays "You'll be with mum in the week", but mum says he is not telling the truth.'
O then talked about his memories of previous violence at home directed at (his mother). He described events in detail and showed great concern for his mum.
O said, 'I just want them to be friends. I love them both. At Easter I want to stay with my mum. Things should stay as they are, with me seeing dad every other weekend.' O was told it would be written down and sent to the court.
- Mr. H reported on 27 September 1999, and when the application finally came before a circuit judge (Judge A) on 20 and 21 December 1999, it was not disputed that, since the previous July, 9 out of 10 staying contacts had not come to fruition, and 24 out of 50 phone calls had not resulted in a conversation. The judge commented: "Those figures speak for themselves: clearly something has gone badly amiss".
- The judge investigated the matter carefully, and I have a full note of his judgment. He had three applications before him. The first was by the father, to enforce the order and to attach a penal notice to it. The second was by the mother, to reduce the amount of contact substantially. Because O was a party to the proceedings, there was also an application on his behalf to decrease the level of contact, which the judge sensibly treated as making common cause with the mother's application.
- The judge identified the nub of the dispute succinctly when he said:
The dispute of fact really amounted to only one point. Was O objecting to the current level of contact because of his own genuine feelings, or was he only reflecting what his mother felt and, perhaps, had told him to say?
- The judge approached that issue by reminding himself of the welfare check list in section 1(3) of the Children Act 1989, He then made an important finding.
Here, it is common ground that O should have contact with his father. It is common ground that O loves his father and it is quite plain that when there is contact it is usually, if not always, successful. When Mr. H saw O in his father's presence part of the way through an extended period of staying contact, what he saw was, he said ,,,,,,"a very happy child".
- The judge then identified what is a common dilemma. The mother's case was that O found the level of staying and telephone contact burdensome. Frequent weekend staying contact meant that he could not see his friends at weekends, play with them and go to parties. Telephone contact was burdensome because there were too many calls, and (the judge suspected) because in common with many small boys O found it a chore to be questioned too much about what had been happening. On the other side, the father felt strongly that the attempt to reduce contact was a ploy to drive him further from O and eventually to lead to him disappearing altogether from O's life.
- The judge found that, as the child of divorced parents, O had divided loyalties, and as a result had said different things to different people. He did not want to upset either parent by indicating happiness with the one, or unhappiness with the other.
- Against this background, the judge was very clear that it would be inappropriate to attach a penal notice to any order he might make. He was satisfied that O's mother was not deliberately thwarting contact, and rejected the father's argument that the mother was active in trying to persuade O not to take up contact with his father. The judge's only criticisms of the mother were that "she does not push it as far as she properly might" and that "she tends to give in too easily to assertions of not wanting to go to see the father or to answer the phone". The judge, however, clearly rejected any suggestion of parental alienation on the mother's part. He said in terms: "Whatever the father's fears, I do not accept that the mother is seeking to remove him from O's life".
- The judge also accepted the evidence of the independent social worker as to O's real feelings. These were that O at present did not want and actively disliked the amount of contact he saw himself as forced to endure. He had recently told his mother that he did not want to see his father at all, although she told the judge that she did not think he meant it. Mr. H said O did not want staying contact more than once a month, and was reluctant to take all the phone calls.
- The judge acknowledged that the contact regime provided by the district judge had not worked. The judge suggested several reasons for this: -
It may be that this is in part due to the differing attitudes the parents have towards appropriate behaviour and discipline; it may be in part an over-assertive manner by the father when speaking to O, in criticising his mother, discussing adult topics concerning the divorce and contact, and in telling him what to do; it may be in part that as he grows up, O likes to have weekends to do what he wants and evenings similarly. It does not, it seems to me, matter very much why the current regime does not work so long as it is not because of any active interference by the mother, which I have found is not the case, thought I repeat that I think she could have done more to encourage contact. What is important is what is the way forward from here.
The father cannot understand how less contact can be the way forward. This, I think, is a classic example of what Mr, H described as rigidity in approach. If, as I find, O is sufficiently unhappy with the current degree of contact that he is more and more turning away from any contact, there is surely the very great risk that he will become alienated from his father to the extent that what the father fears, namely the worst case scenario of contact having to cease altogether may well come to pass. I am quite satisfied that the most important thing is to get contact working again; that this is best done by starting with modest levels of contact and then attempting to build them back up to a higher level.
- In applying the welfare checklist, the judge said that "the stresses of coping with the unhappiness of his parents' divorce and their continued acrimonious behaviour towards each other are rapidly approaching the intolerable" and might well result in O needing psychiatric or psychological help. He described both parents as capable but identified an "excessive rigidity of approach" on the father's part. He rejected a suggestion that the mother was suffering from any problem with her mental health, and commented favourably on her evidence in the witness box under what he described as a rigorous and quite lengthy cross-examination from the father.
- The order made by the judge was for visiting contact on Christmas Day and thereafter on every third weekend. He reduced telephone contact to once a week. He encouraged additional contact if O was happy with it, and directed a review on the first open date after 15 March 2000, a date subsequently moved on the court's own motion to 6 April 2000.
- On 6 April 2000, a different circuit judge suspended Judge A's order of 23 December 1999, and directed that the review should take place before herself on 3 August 2000. In the meantime there was to be supervised contact arranged by Mr. H.
- Further directions were given on 23 June 2000. On 7 July 2000 the time allocated for the review was reduced to one hour, and the applications were adjourned for the purposes of the parents attending mediation. In the meantime, contact was to remain suspended.
- On 7 July 2000, the father gave an undertaking that he would not enter a particular area, which included O's home and his then school, although he was, in fact, able to go to the school by agreement from time to time to parents' evenings and the like. The mother also gave an assurance that she would not denigrate the father when speaking to O.
- It has plainly been hoped on 7 July 2000 that the first appointment in the mediation could take place before 3 August, the date fixed for the review. However, it could not be arranged until 8 August. Both the mother's solicitors, and the solicitor acting for the child wanted the review adjourned. The father refused to agree, although he did not attend the hearing on 3 August. His instructions were that he wanted the indirect contact to resume, contrary to the suspension agreed on 6 April. The judge had before him a letter from Mr. H to O's solicitor, in which O made it clear he did not want to see his father and did not even want indirect contact with him. The judge described this as "very sad" and criticised the father for seeking to use the hearing to apply for indirect contact. He advised the father to concentrate on mediation, and re-listed the review for 6 September 2000.
- On 6 September 2000, the judge gave directions for a two day hearing fixed for 11 and 12 February 2001. He gave a number of directions, and there was a consent order that, despite the undertaking of 7 July 2000, the father was to be permitted to visit O's school by arrangement with the school.
- On 5 December 2000 there was an order that the father be permitted to send O cards and appropriate presents, and to telephone on 14 December 2000. On 15 December 2000, the father's application to instruct a child psychiatrist was refused. There was, however, an order for telephone contact on Christmas day.
- The substantive hearing of the father's application for contact took place before the Circuit judge (Judge L) on 1 March 2001. The judge gave a long and careful judgment running to some 38 pages of transcript. He related the history of the case. He cited substantial extracts from the judgment of Judge A given on 23 December 1999. He considered that the problems identified by Judge A still existed, only unhappily in a more extreme form.
- The judge dealt fully with the work done by Mr. H. He rejected the father's case that Mr. H was unprofessional and biased and that he had behaved in a manner designed to alienate O from his father. He described Mr. H's involvement with O as "tremendous" and as "an attempt to understand him and assist him that would go far beyond the involvement that any court welfare officer could have, any social worker could have or for that matter any child psychiatrist could have".
- The judge equally rejected the father's case that the mother was seeking to alienate O from his father. He saw her in the witness box. Unlike the father, she was prepared to accept her share of responsibility for her behaviour during the course of the marriage Hers was not, the judge found, the attitude of a mother seeking to alienate a child from his father. He described her as a woman who had insight into her own shortcomings and the problems associated with contact. By contrast, the judge cited an answer which the father gave in cross-examination. He was asked: "Do you accept any responsibility for the position O takes?" His answer was "No".
- The judge commented that the mother's allegations of domestic violence had never been tried out. He could not therefore make findings about it. However, he did find that there was a very unhappy family life for O; that there were regular arguments between the parents; that there were rows and shouting; and that on at least one occasion there was some physical violence in O's presence. The judge found that O felt (for whatever reason) that his father was more the perpetrator. This had affected his attitude. The judge found that this episode would have caused O emotional harm.
- The judge concluded his assessment of the parents in these terms: -
I find that the mother is willing to see some fault on her own part; is willing to promote and encourage contact; but she is sensitive to and responsive to what O is saying.
Very sadly, I find that the father can see no wrong in his own conduct. He does not consider that he has in any way caused O's present resistance to contact. I find that, by pressure and his attitude to O and to O's mother, the father has caused O to have his present resistance to contact. I find that when the father says that mother's alienation of father with the child will in the end rebound and he (O) will reject his mother and that will be against his welfare, he is not saying that out of a genuine future concern for O or the mother, but rather as another insinuated threat against the mother.
- Having considered a number of European authorities and the relevant articles of the European Convention on Human Rights, the judge went through the welfare checklist under section 1(3) of the Children Act, and concluded that O had not only suffered harm by the dispute going on for so long, but that direct contact would cause him further, significant harm, as would the prolongation of the proceedings. He accordingly made an order prohibiting direct contact, and declined to legislate for a review, on the basis that O required finality. He made a number of orders, however, for indirect contact. He refused the father permission to appeal.
The decision of the Court of Appeal
- The father applied to the Court of Appeal for permission to appeal. On 26 September 2001, Thorpe LJ directed that his application be listed for an oral hearing on notice to the other parties with the appeal to follow if permission was granted. That application was heard by a court consisting of the President of the Family Division, Dame Elizabeth Butler-Sloss, Ward and Keene LJJ. The leading judgment was given by the President.
- In argument before me, the father appeared to think that the judgment of the President constituted a vindication of his position. I do not read it that way. In paragraph 11 of her judgment, she said: -
Essentially, I agree with everything the judge said in this case up to the point when he felt the child needed finality. He felt, taking the advice of the independent social worker, that the time had come when the court process should be brought to an end
..
I recognise the appalling dilemma in which this very experienced judge found himself in this case. Here was a boy who was setting out strongly what his views were. Here was a father not prepared to accept that the boy's views were valid or that the boy was really expressing the views that the independent social worker said he was and which the judge accepted. Again, the father has a real duty to look at what the independent social worker said the boy actually thinks. The judge had a duty to take into account the views of the boy
.
So the judge was faced with this appalling dilemma and in that area, and that area alone, he went wrong. He should not have taken it out of the court system. He should have allowed for one more try of a different sort to see if it might be possible to get some movement. The father did ask for a child psychiatrist at an earlier stage and was turned down. I express no comment on that save to say that the time does appear to have come when someone with a particular expertise should come into it.
- The Court of Appeal accordingly gave the father permission to appeal and allowed the appeal to the extent of appointing CAFCASS Legal as O's Guardian (with that guardianship to begin as soon after 1 March 2002 as possible) and by giving CAFCASS Legal permission to instruct a mental health specialist to advise the court.
- Before leaving the judgment of the President, I would like to say that I have considerable sympathy with the father's argument that it has taken more than two years since the date of the judgment to obtain a hearing, although as will be clear from what follows, the father himself must take a share of responsibility for the delay. However, it is also very clear to me that the father has simply not taken on board what the President said about him. She rejected his argument that the root of all evil in the case was the appointment by the district judge of a solicitor and an independent social worker for O. She did not think the school was operating on the machinations of the mother. She did not think it necessary to go into the whole background. She commented: -
In his careful judgment, the trial judge set out his problems. He set out considerable criticism of the father. Those criticisms are based on the judge having seen the witnesses, heard them give evidence, having read the reports, having assessed the facts and made findings. The father would be well advised to read what the judge has said because the judge is a sensible man. He formed a view of the father which is not the father's own view of himself. It would not do the father any harm to wonder as all grown ups ought to wonder whether their own perception of themselves is necessarily the perception of others. That also applies to the mother. Is she being as helpful and as positive towards the re-introduction of contact between her son and her former husband as she could be? Is she doing it as a distasteful duty or is she recognising that this child would gain if he could renew a contact arrangement with his father in which he had pleasure in the past? Both parents need to re-examine themselves; everybody does, and they particularly need to do so in the context of this case.
- As the balance of this judgment will show, these wise words seem to me to have fallen on deaf ears so far as the father is concerned.
Events after the judgment of the Court of Appeal
- Events after the judgment of the Court of Appeal on 22 November 2001 did not move swiftly. On 25 March 2002, the father issued an application seeking (amongst other things) the transfer of the case to the High Court and a shared residence order. He also sought to be released from the undertaking he had given in July 2000. Amongst the otherwise sensible reasons put forward were the father's wish "to prevent the mother from frustrating contact between father and son; to prevent further mental abuse of the child (parental alienation)".
- On 23 May 2002 Judge L transferred the case to a different county court within the same county for a directions appointed on 10 June 2002. He also discharged O's previous advisers and substituted CAFCASS Legal in their place, as the Court of Appeal had directed.
- On 29 May 2002 a letter of instruction was sent by CAFCASS Legal to Dr. B, a local child and adolescent consultant child psychiatrist. On 10 June 2002, Judge B, sitting in the court to which the case had been transferred fixed a two day hearing for 30 and 31 October 2002. He gave directions designed to fit in with that hearing date. Apart from the parents' evidence, CAFCASS legal was ordered to file and serve Dr. B's report by 1 August 2002; CAFCASS Legal was to file its report by 15 August 2002 and Dr B was to attend the first day of the hearing.
- Dr. B did not report until 13 October 2002. As a consequence, CAFCASS Legal did not file its report until 10 days later on 23 October. Both reports advised against the reintroduction of contact. The result was that the father, perfectly reasonably, applied for the hearing to be adjourned. He also, again perfectly reasonably, wished to have a second opinion The judge adjourned the father's application to a date to be fixed and gave directions designed to identify a suitable expert.
- The father complains strongly about the late delivery of Dr. B's report. Whilst I have not had the opportunity to investigate the reasons for the delay it is, on its face, highly unsatisfactory. It has undoubtedly added substantially to the overall delay in the hearing of the proceedings.
- On 18 December 2002, Judge B gave the father permission to instruct a Dr. G, and gave Dr. G permission to speak to Dr. B and to contact the mother. Dr .G was also directed to produce an initial report by 10 January 2003. It appears that this order was made without notice to the mother, who objected to Dr. G on the grounds that he was a proponent of parental alienation syndrome. The mother accordingly made an application for the judge to reconsider his decision of 18 December 2002.
- In a note dated 8 January 2003, Judge B explained his reasons for making his order on 18 December 2002. In the event, however, on 14 January 2003, when the matter came back before Judge B, it appears to have been common ground that a well known and highly respected consultant child psychiatrist, Dr C was acceptable to all the parties, and directions were given designed to ensure that Dr. C received letters of instruction on or shortly after 24 January 2003 "for (Dr) C to consider and comment upon with a view to the Court on the next occasion being in a position to approve a final letter of instruction to Dr. C". The case was also transferred to the High Court forthwith.
The case in the High Court
- The transfer to the High Court inevitably involved further delay, and it was not until 26 February 2003 that the matter came before me for directions. I had two principal concerns. The first was to ensure that the case was heard as soon as possible given the very substantial delays which had already occurred. The second was to ensure that Dr. C was instructed and could produce his report in good time for the hearing. I therefore directed the parties to list the case for final hearing in consultation with the Clerk of the Rules, and listed a further directions appointment for 16 June 2003, to ensure that the case was on course for a full hearing.
- The directions which I gave on 26 February 2003 relating to Dr. C were designed to ensure that Dr. C's report was prepared by 9 May 2003. The papers were to be disclosed in full to Dr. C with a suggested reading list by no later than 7 March 2003. Following the filing of Dr. C's report he was to discuss the matter with Dr. B and they were to prepare an agreed schedule setting out the areas of agreement and disagreement between them. That was to be filed and served by 23 May. The critical issues to be addressed were whether or not it was appropriate to take further steps to try to facilitate contact between O and his father and whether there was any way that O's perception of his father could be improved. Given O's reluctance to see any further professionals, I directed that if Dr. C wished to interview O an application should be made to me on 7 days notice setting out Dr. C's reasons for wanting to see him.
- I had hoped that when the matter came back on 16 June, a date would have been fixed, and that the position would be clearer. If Dr. C agreed with Dr. B's conclusions, there might well be little point in an extended three day hearing, which could then be vacated. Alternatively, if Drs B and C had agreed a strategy for restoring contact, it might well be possible to implement that strategy without a contested hearing.
- Most regrettably, when the case came back on 16 June 2003, Dr. C had not been instructed. The reasons were unclear. I remained of the view, however, that the father was entitled to a second opinion. I accordingly gave him until 3 July 2003 to continue his quest for an appropriate expert. Because he was in person, I directed the mother's solicitors to prepare a proper bundle of documents for the father to give to the expert. I directed the parties to come back at 10.00am on 3 July 2003 so that the question could be finalised
- On 3 July 2003, I gave the father permission to instruct another well known child and adolescent psychiatrist, Professor Z. I gave careful directions similar to those given on 16 June 2003 designed to ensure that a bundle of documents was available for Professor Z to consider. Professor Z was to report by 3 November. I gave other detailed directions designed to ensure that the case could be ready for a three day hearing commencing on 10 December 2003.
- I was very concerned about the delay between July and December. The reason for it was that 10 December was the first occasion on which I could accommodate a three days case in my list in London. Despite my strong belief in judicial continuity, I had earlier offered the parties the option of releasing the case to another judge who might be able to take it sooner. As things have turned out there is a degree of irony in the fact that the father expressly opposed that suggestion on the basis that I had been the judge who had chaired CASC, the Committee which had produced the report Making Contact Work.
The father's application to be released from the undertaking given on 7 July 2000
- Although the hearing on 3 July 2003 had been listed at 10.00am for directions relating to the expert evidence, the father asked me to hear his application to be discharged from the undertaking which he had given on 7 July 2000 not to go to the mother's home or O's school.
- The father's case, in essence, was that the undertaking was now three years old. It had been given voluntarily. He had not breached it. Most court orders were time limited. O would shortly be going to secondary school in an area not covered by the undertaking. The father said he was not a criminal, and that the only reason why O was anxious was because of the fears his mother was inculcating into him. He asked me to make a prohibited steps order against the mother restraining her from discussing the case with O.
- The father also argued that the existence of the undertaking had made the task of CAFCASS Legal more difficult, and that the continuation of the undertaking constituted a breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms because it prejudiced the court's view of the father.
- For the mother, counsel argued that the father had been legally represented when the undertaking was given; that it had demonstrated goodwill on the father's part and had provided reassurance for O. Keeping it in place did not prejudice the father's case, and in the sensitive period leading up to the final hearing, O need that reassurance to remain in place.
- CAFCASS Legal, on O's behalf. took the same view and argued that I should keep the undertaking in place until the final hearing.
- In my judgment on the point, I stated that, as between the adults, the arguments seemed to me quite finely balanced. The undertaking has been a helpful gesture, and I was impressed by the fact that the father had not breached it. I expressed my regret that it had not led to a relaxation of the atmosphere. What influenced me most, however, was a letter from O's school dated 27 June 2003 which demonstrated clearly the effect on O of the ongoing dispute between his parents. I will not recite the terms of that letter in this judgment, but it was sufficient to persuade me that it was in O's interests for the undertaking to remain in place.
- I made it absolutely clear to the father several times that my refusal to release him from the undertaking would in no way prejudice his case at the final hearing. He had given the undertaking voluntarily. I regarded that as positive and helpful. There was no prejudice to him in holding him to it. He had no need to go to the mother's address, and if he wanted to go either to the old school or the new school, such visits could readily be negotiated. In no sense was I pre-judging the December hearing: indeed, that hearing would be used to examine why O was feeling as he did.
Events after 3 July 2003
- In my judgment, the father's response to my refusal to release him from his undertaking has been disproportionate. He first of all applied for permission to appeal. I refused on the grounds that it was a discretionary exercise in which I was simply holding the ring until the final hearing. The result, however, was not an application to the Court of appeal for permission to appeal, but a letter from the father dated 21 August inviting me to vacate the December hearing on the grounds that my refusal to release him from his undertaking had made it impossible for him to continue with the final hearing.
- The letter added that my ruling had probably made it impossible for him to continue to try to maintain a relationship with his son. This was because I believed him guilty of something without proof or evidence to support my view. This presumption of guilt within the family law system was so great, he said, that it was impossible for him to proceed. CAFCASS was also guilty of the same presumption as well as "hypocritical bias" and a formal complaint had been made against CAFCASS. The letter also complained, more rationally, of the delay since the hearing in the Court of Appeal.
- I instructed my clerk to reply stating that the December hearing would go ahead. The response was a further letter from the father dated 23 September 2003 formally withdrawing from the proceedings.
- The pre-hearing review for the December hearing took place as directed on 24 November 2003. The father appeared in person with a MacKenzie friend. Both the mother and CAFCASS Legal were represented. The father confirmed that he wished to withdraw his application for contact. He produced a statement dated 24 November 2003, from which in due course it will be necessary to quote in some detail in order to demonstrate quite how irrational and unreal the father's position has, in my judgment, become.
The state of the evidence as at 24 November 2003
- There was no report from Professor Z. The report from Dr. B, dated 13 October 2002, was unequivocal in its conclusions. Dr. B summarised them thus: -
O shows no mental health disorder, but is slightly overprotective of his mother and troubled by an incident when he was four when his mother was injured. He does not warrant therapy although this could be reviewed once the contact issue is resolved. I can see little hope that O would benefit from direct contact given his resistance. Moves to establish such contact has (sic) the potential to undermine the developmental progress he is making, There may be a role for indirect contact if sensitively arranged.
- I do not propose to quote at length from Dr. B's report. It strikes me as a thorough, careful, balanced and professional piece of work. Dr B witnessed a close and affectionate bond between O and his mother which suggested to him a positive attachment. He did not detect any undue influence being exerted by the mother on O about his views on his father or contact. Whilst O's alienation from his father was unfortunate, Dr. B did not see it having any clear and direct negative influence on O's development. He was doing well by all parameters, and had made progress at school in problematic learning areas. The unresolved issue of contact was identified by O as a significant stressor.
- Dr B recognised that, of course, in time O was likely to revisit his views of his father in mid-adolescence. There would then (but not until then) be time and opportunity for him to review his opinions, and perhaps forge a more progressive and positive relationship with his father. However, if interaction between himself and his father was accompanied by complaint about his mother, Dr B's opinion was that it was likely O would remain alienated.
- The CAFCASS caseworker had conducted her own investigations. She had interviewed both parents, and talked to O. She had made contact with O's school and his general practitioner. Her report is careful and balanced. She concluded that O could not cope with direct contact and that to try to force the issue carried the possibility of emotional harm. The report from the school which she exhibits shows the progress O is making.
- I also had a statement from the mother dated 14 October 2003, which reiterates her position. However, this warrants recording. She says: -
As O enters his adolescence he is becoming more forceful in the expression of his own opinions and views, and I believe has become more rigid in his resistance to the re-establishment of a relationship with his father. Despite what (his father) thinks, I have sought to encourage O to be more compassionate and to try and understand how important he is to his father. I, on many occasions, when the opportunity arises, suggest to O that he might like to respond to his father's letters or give his father a ring, or in some way move towards a better relationship. Unfortunately, O's stubbornness means that those attempts on my part are often rebuffed, and I do not pursue them any further because I do not wish to exacerbate the difficulties or push O into a corner.
My own view is that (O's father) is incapable of perceiving the situation from any other perspective than his own, and that his own vision is clouded by bitterness and hatred of me. He is pursuing what has become to him a political campaign based on his concept of his rights and entitlements rather than a recognition of the reality of his own son, O's needs and wishes.
Throughout these proceedings, (O's father) has consistently turned against anyone who does not properly and fully reflect his own wishes and opinions and he comes to dismiss any such views as being unjust, unfair, part of a conspiracy against him, or the like. He has lost the capacity to look at a situation objectively and to recognise that there may be some validity to views held by others. His determined and single minded pursuit of his own agenda is a reflection of that to which I believe O was exposed throughout the period when contact was taking place and provides an explanation as to why, despite there having been some good times, O's decision in the end was to cut off that contact and protect himself from the incessant pressure imposed upon him by his father. Until and unless (O's father) accepts and realises that, I do not believe that there is a prospect of a good relationship between father and son.
- Although I have not had (and will now not have) the opportunity to see and hear the parties in the witness box, all the evidence in the case supports the position which the mother set out in the second and third paragraphs of the extract from her statement cited in the previous paragraph. It is also confirmed by the statement which the father put before the court in support of his application to withdraw, to which I now turn.
The basis for the father's application for permission to withdraw
- It is against this background that I have to analyse the reasons which the father gives for seeking to withdraw his application. These are contained in a statement dated 24 November 2003, headed Enough is Enough. It begins, reasonably enough, by pointing out that two years had elapsed since the decision of the Court of Appeal. It then suggests that, in that time, nothing had been done to facilitate contact.
- The father then he accuses O's mother of child abuse, perverting the course of justice, defamation of character and perjury. He also accuses her solicitors of child abuse, putting the wishes of their client before the welfare of the child, of deception and deliberately misleading the court and of defamation of character. He accuses CAFCASS Legal of "not encouraging shared parenting when they have had ample opportunity to do so and therefore of child abuse". He accuses the district judge in the county court of being "instrumental in the removal of (O's) rights to a family life and my rights to the same." He accuses the county court of violating the rights of O's extended paternal family, and reserves the right to bring proceedings against the local authority, the police, O's primary and secondary schools. He says he is currently collecting the evidence, and will issue proceedings when the evidence becomes fully available.
- The father then goes on to suggest that the hearing on 24 November is another opportunity "to do what is right and proper and to encourage a relationship between father and son". If I did not grasp that opportunity, the same accusation would be made against me. What the father describes as "this persistent breaking of the law" finishes today. He will not longer, he says, "pursue justice within the family courts, as it is blatantly obvious that ECHR Article 6
.is being denied me". He also relies on Article 3 (protection from torture and inhuman and degrading treatment) as well as Articles 8, 10 and 14.
- The father then accuses the mother's solicitors of blackening his character, lying, coercing O's school into enforcing an order which does not exist. He accuses the mother of making up the rules as she sees fit, and asserts that the school is "making up the laws as they go along". The effect of this, he says, is to make his future actions "covert rather than overt".
- In section 2 of the statement, the father discusses what he describes as the options open to him. The first is a complete withdrawal from his son's life, accompanied by an encouragement to O to sue all parties for compensation on the inevitable resumption of the relationship between father and son. The second is to pursue justice thorough the European Court of Human Rights. The third is more delphic. It is: -
To act in a way equal to the other persistent lawbreakers in this case, knowing that the law should treat ALL people with equality. If this by its very nature puts O at risk, then the court and CAFCASS Legal must accept the responsibility for creating that situation.
- The father then withdraws his consent to the undertaking, protects his right to "peaceful public protest as a rapidly increasing number of "militant" fathers have done and will continue to do in the future" and also protects his right to "freedom of speech whilst knowing that the injustice of this case needs to be drawn to the public's attention". He then states that he has not decided on his course of action, and cannot until the hearing is finished and appropriate rulings made. He says he "will not be abused further".
- In section 3 of his statement, the father asserts that as there has been no attempt to reintroduce contact, the case has clearly contravened the Children Act and the European Convention on Human Rights. He accordingly applied for emergency interim contact with O. The statement concludes: -
ALL of this would have been totally unnecessary if the courts of this country had treated me as equal in the eyes of the law, and equal in the eyes of my son. In fact, even today, if any of the actions expressed in the Making Contact Work document were put in place, and made clear to (O's mother) that she HAD to comply with court orders, or risk losing residence of O, I am sure that CONTACT WOULD WORK. Unless we try it, as we should have done many years ago, then the whole "Making Contact Work" effort is an expensive and useless exercise. Enough is Enough.
- In the course of his oral submissions to me on 24 November 2003, the father made a number of worrying comments. Amongst other things, he told me that he was "going over to the other side". He refused to explain what he meant by that. The fact that he made such a statement, however, persuaded me that it was necessity to make a interim prohibited steps order in the same terms as his 7 July 2000 undertaking, at least until the date of the delivery of this judgment.
Analysis and Discussion
- This is, in my judgment, undoubtedly a very difficult and intractable contact case of the type identified in paragraph 6(1) and (2) of this judgment. It would, of course, be easy for the court to dismiss the father's case out of hand. As my analysis of the facts and the evidence has shown, the father's allegations against the mother are, on any objective analysis, without foundation. The suggestion, in particular, that she has been guilty of child abuse, defamation and perjury are manifestly unsustainable, indeed absurd.
- The irrational attitude of this father on the subject of his contact with his son, and his belief that the failure to achieve contact is entirely the fault of O's mother and the judicial system is, however, representative in my experience of a number of parents engaged in contact disputes. Intractable contact disputes tend to disguise what are frequently admirable qualities in both parents. This case seems to me no exception. The father is an intelligent man. I venture to think that were he to be engaged in a discussion on any other subject than that of his contact with O, I would find him quite rational. Indeed, on any other subject, the positive aspects of his personality, which plainly exist, would be likely to emerge.
Blaming the system
- Sadly, however, what the father completely fails to appreciate is that the principal reason why the court is forced into the position in this case of terminating direct contact is because of his conduct towards O and O's mother. He simply fails to acknowledge that he has any responsibility for the unhappy position in which he finds himself. His answer to Judge L in August 2001 and recorded in paragraph 36 of this judgment could not be clearer.
- In Paragraphs 10.35 to 10.43 of Making Contact Work, CASC set out trenchant criticisms of the court process. I resile from none of them, although both through the Protocol for Judicial Case Management in Public Law Children Act Cases and in the application of its principles to contact and residence disputes the question of judicial continuity has been vigorously addressed. But I adhere in particular to the conclusions contained in paragraphs 10.37 and 10.39, namely: -
10.37 The court procedures are too slow. There is insufficient court time and a lack of resources: cases take too long to come to court. There are substantial delays which are detrimental to children and their parents.
10.39 The litigation process is adversarial and counter-productive. It entrenches attitudes rather than encouraging them to modify. It tends to focus on the arguments of the parents, not the needs of the child. It puts particular pressure on the divided loyalties of children.
- In so far as the father's complaints echo the conclusions of Making Contact Work I am, of course, sympathetic to them. But it is not enough to blame the system, particularly where a substantial share of the responsibility for contact breakdown lies at the door of the parent who complains that the system is the cause of all his ills. As I say in paragraph 6(7) of this judgment, parents must take their share of responsibility for the state of affairs they have created.
- If I had thought that there was any prospect of beginning to repair the relationship between O and his father by means of a full hearing, I would have overruled the father, and not given him permission to withdraw. Unfortunately, he made it clear particularly in the statement dated 24 November 2003 that there was no prospect of any change in his attitude, and accordingly no prospect of contact succeeding in the short to medium term. I therefore had to balance the undoubted stress on the mother and O of these protracted proceedings continuing. In my judgment, there was no alternative to bring them to an end.
A last resort
- This case does, however, in my judgment illustrates the lengths to which the court will go before terminating parental contact. Apart from the hearing before the district judge in the county court which resulted in the initial order, there have been two full hearings before experienced circuit judges, both of whom, in my view, dealt carefully and conscientiously with the case, and did their best to promote contact. In addition, a well-meaning but ill-advised attempt by the county court to engage a solicitor and independent social worker for O proved unsuccessful. Even then, the court did not draw the line. The Court of Appeal held that the county court had given up too soon, and directed a further attempt to achieve contact. That led to O being represented by CAFCASS Legal and the report of a consultant child psychiatrist. I did my best, without success, to ensure that the father obtained a second opinion from a distinguished source. I failed.
- Like's O's mother, I still think it is in O's interests to have contact with his father. But it is very clear to me that without a radical change in the father's position, direct contact is impossible. As I have already made clear, I would not allow the father to withdraw if I thought there was a reasonable possibility of meaningful contact resulting from a hearing. But I am satisfied that there is not.
Parental Alienation
- Parental alienation is a well recognised phenomenon. In the recent case of Re M (Intractable Contact Dispute: Interim Care Orders) [2003] 2 FLR 636, a mother had persuaded her children, quite falsely, that their father had physically and sexually abused them, and that their paternal grandparents were also a danger to them. She refused to allow their father to have any contact with them, and disobeyed court orders for contact. I found that her conduct was causing the children significant harm, and invited the local authority to take care proceedings, the outcome of which was the removal of the children from their mother, and residence orders in favour of their father. That, in my judgment, was a clear case of parental alienation.
- I agree with Dr Claire Sturge and Dr. Danya Glaser in their report for the Court of Appeal in the seminal case of In re L (A Child)(Contact: Domestic Violence) [2000] Fam. 260 and published at [2000] Fam Law 615, that the term "parental alienation syndrome" is a misnomer. As Sturge and Glaser put it [2000] Fam Law 615 at 622:
We do not consider it to be a helpful concept and consider that the sort of problems that the title of this disorder is trying to address is better thought of as implacable hostility. The essential and important difference is that the Parental Alienation Syndrome assumes a cause (seen as misguided or malign on the part of the resident parent) which leads to a prescribed intervention whereas the concept (which no-one claims to be a "syndrome") is simply a statement aimed at the understanding of particular situations but for which a large range of explanations is possible and for which there is no single and prescribed solution, this depending on the nature and individuality of each case.
- However one looks at it, however, the instant case is not one of parental alienation by O's mother against his father. All the professional opinions in the case, including, of course, those of the two circuit judges who saw and heard the mother in the witness box, negative parental alienation. To suggest otherwise is, I regret to say, part and parcel of the father's attempt to absolve himself of responsibility.
Conclusion
- For all these reasons, and with regret, I give the father permission to withdraw his application. I will now hear him, and counsel, on whether or not I should continue the interim prohibited steps order currently in force.
