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Cite as: [2010] 2 FCR 664, [2010] EWCA Civ 89

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Neutral Citation Number: [2010] EWCA Civ 89
Case No: B4/2010/0127

COURT No. BH04P00122)

Royal Courts of Justice
Strand, London, WC2A 2LL
21st January 2010

B e f o r e :





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Mr Roderick Hine (instructed by Simon Lacey Law Associates, Weymouth) appeared on behalf of the Applicant mother.
Mr Robin Tolson QC (instructed Battens, Dorchester) appeared on behalf of the First and Second Respondents, the paternal grandparents.
Mr Marcus Scott-Manderson (instructed by Boodle Hatfield, London W1) appeared on behalf of the Third Respondent, the father.
Mr Leslie Samuels (instructed by Aldridge Brownlee, Bournemouth) appeared on behalf of the Fourth Respondent, the child by his guardian ad litem.



Crown Copyright ©

    Lord Justice Wilson:

  1. We have before us an application for permission to appeal against an order for contact made by HHJ Meston QC in the Bournemouth County Court early in the afternoon of Friday 15 January 2010.
  2. The order was that H, a boy, who was born on 23 June 2000 and is therefore aged nine-and-a-half, should go later that afternoon, namely at 4.30pm, in order to have staying contact with his paternal grandparents until 8.45am on Monday 18 January 2010, when they were supposed to return him to school.
  3. I was contacted in my room on the afternoon of 15 January, shortly before 4.30pm, by the family lawyer in house here in the Court of Appeal; she relayed to me an application made to this court on the telephone on behalf of the mother for a stay of execution of that order. I granted a stay until today, 21 January. I directed that today there should be a hearing before me and one other judge of this court, or a judge acting as a member of the court; that the hearing should be on notice to the paternal grandparents, to the father and to the guardian; and that at today's hearing all issues relating to the mother's application for permission to appeal and for any further stay of execution should be determined.
  4. Thus today we are assembled for that hearing, together with my Lord, Henderson J. In retrospect, had I had more time, I would have added a rider to my determination, namely that the court reserved the right, were it today to grant permission to the mother to appeal, to proceed forthwith to hear the substantive appeal. In the event, nothing turns on my failure to have added that rider because, at the outset of this hearing at 2pm today, I asked all counsel whether, in the event that permission to appeal was granted to the mother, they would object to this court's then and there proceeding to determine the appeal; and I am happy to say that the united voice from the Bar was that all were content for that course to be taken.
  5. This, therefore, is an application for permission to appeal with appeal to follow if permission is granted. It is made by the mother; and importantly it carries the support of H's guardian ad litem, namely Mr Fremantle. Heavily opposed to it, however, are the paternal grandparents. The father, although not directly involved in the appeal, has, for reasons which I understand and which relate in particular to a paragraph of Mr Hine's skeleton argument hurriedly drawn in support of the proposed appeal, decided himself also to be represented himself today. Properly he takes no active part in the dispute about whether, having a discretion in the matter, the judge acted outside the ambit of his discretion, or was plainly wrong, in making the order for contact in favour of the grandparents which he did.
  6. As I have indicated, the order was for contact on specific days and those days are now past; but, as a matter of pure logic, I agree with the submission of Mr Tolson QC on behalf of the grandparents that, in the event that we were either to refuse the mother permission to appeal or to grant her permission appeal but thereupon to dismiss her appeal, we should attempt to make some substituted provision for contact along the lines of the judge's order, i.e. for a future weekend. Indeed, in principle, why not this coming weekend, namely the weekend beginning tomorrow 22 January? There is however one practical problem about this particular weekend but, in the light of the judgment upon which I am embarked, the issue does not arise.
  7. H lives with his mother near Wareham. He has always lived with his mother since she and the father separated. Long ago, HHJ Meston QC conducted an elaborate fact-finding hearing in relation to allegations by the mother and, for that matter, by the maternal grandmother, that the father had been guilty of sexual misconduct in fact towards H, then a very small boy, and towards the grandmother herself. The judge found the allegations to be true. The father's attempted appeal against the findings failed. The father's attempted reopening of the inquiry at the level of the county court failed. The father's attempted appeal against the refusal to reopen, being in fact a matter which came before me, failed. Those findings of sexual misconduct have been considered, including by this court, to be unassailable; and they represent the facts of the matter, however unpalatable and unfortunate. They must inform future decisions about contact.
  8. In recent times H has enjoyed supervised non-staying contact with the father; and it has been in certain respects of great value to H. There came a time last year when it was felt that, at his age, an explanation for the need for supervision of the contact had to be given to him: for he could not understand why he was unable to see his father freely. A decision was taken, I believe, by HHJ Meston QC, who has had the conduct of this matter for so long, that H should be informed carefully and professionally about the findings of fact which required supervision of the father's contact. Such was an exercise conducted last year by Ms Lillitos, a consultant child and adolescent psychotherapist. There is, however, one other major fact which has given rise to the most acute problems both for H and for the mother, and generally: it is that the father has not been able even to date to accept the truth of the findings made against him. So, last year, not only did H, at the age of just nine, have to be introduced to the findings (in an age-appropriate way) and to why they had the significance which required the supervision of his contact, but also he had to be told that his father did not accept those findings to be true. It is hardly surprising that the exercise, necessary though it has been, has proved to be a tumultuous assault upon H's mind. One could expect nothing else.
  9. In October 2009 HHJ Meston QC conducted, over four days, an inquiry into the future arrangements for contact: not only H's contact with the father but also his contact with the paternal grandparents. These grandparents are very loving towards him and desperately want to include him again in their wide and apparently happy family life.
  10. Although to some extent I accept the submissions made to the effect that the order under proposed appeal has to be considered in the context of the judge's long written reserved judgment following that hearing, namely a judgment disseminated informally on 29 November and handed down formally on 11 December 2009, the more important material for survey of the judge's order made on 15 January comes more recently than that. It suffices to say that, at the long hearing in October, concerns had been expressed not only by the mother but also by the guardian ad litem about any swift and robust extension of contact with the father or with the grandparents.
  11. Before I turn to the detail of the order made on 11 December I must, in view of a submission made by Mr Tolson QC on behalf of the grandparents this afternoon, notice the way in which, in the long written judgment, the judge sought to assess the mother. He noted that she had accepted and complied with interim orders for contact even when contrary to the submissions made on her behalf; had not attempted to pursue any application for termination of contact; and had accepted the guardian's recommendations for contact. The judge said:
  12. "I accept the submission which was made on her behalf that she has approached matters with insight and intelligence. In my judgment the fact that contact has worked as well as it has is a reflection on her ability to accept the orders and on her ability not to convey her misgivings to [H]."
  13. It may be that there was some distinction between the detail of the orders for contact made by the judge on 11 December and the submissions which had ultimately been made on behalf of the mother and the guardian to the judge. But at this short hearing I have not been persuaded that there was any substantial departure by the judge from the final submissions made on their behalf.
  14. The order in relation to the father's contact was that it should take place on 12 December and then, starting in January 2010, on a consecutive Saturday and Sunday one weekend per month, but that it should continue to be supervised by the supervisor who had been in post in 2009, namely Mr Smart. More important, for this afternoon's purposes, was the order in relation to contact with the grandparents. The judge provided that H should go for a period of four hours to the paternal grandparents on 19 December 2009, for a period of six hours on dates to be agreed in February, April and June 2010, and then, in the summer holidays 2010, an increase of a period of up to four days' staying contact, whether at their home in Hertfordshire or in their timeshare apartment in Bournemouth.
  15. Such orders followed the tramlines of the judge's long written judgment. However, shortly prior to the hearing on 11 December, Mr Fremantle circulated a note, including to the judge. It was dated 9 December 2009.
  16. By the note, Mr Fremantle reported that Ms Lillitos, while extremely keen to confine herself to her therapeutic role, had told him that she was very concerned for H, feeling that he was struggling, overwhelmed and in such a low mood as perhaps to be depressed. Mr Fremantle also reported that, on 8 December, he had seen H at school and that H had told him "I don't want to see Dad, he makes me worried and stressed". H had, said Mr Fremantle, complained that he felt like crying about twice a day; that he was not sleeping well; that things were getting worse and not better; and that he regarded himself as not having to go on contact if he did not want to do so. By his final paragraph the guardian reported that he considered that there might be worse to come for H and for those close to him and that there might be real angry outbursts or low mood swings. Mr Fremantle then wrote:
  17. "[H] requires very careful and sympathetic understanding, consistency and a complete absence of further emotional pressure. Whether this can be achieved within the proposed structure of contact remains to be seen, but I do not consider that any risk of discomfort should rule out the current proposals."
  18. Concerned as this extremely experienced and sensitive family judge will have been upon reading Mr Fremantle's memorandum, he understandably proceeded to make the orders for contact on 11 December along the lines foreshadowed in his written judgment.
  19. Since 11 December the situation in relation to the order for contact has become extremely serious. I have adverted to the fact that H was supposed to have supervised contact with the father on the following day. He refused to attend. Mr Fremantle circulated another memorandum, dated 17 December 2009. By that memorandum he reported H's refusal to attend contact with the father; and reported a further conversation with Ms Lillitos in which she had opined that H had been pushed to his limits, could not cope with the continued pressure, wanted it all to be over and needed a break. Then Mr Fremantle suggested that, in retrospect, the expanded contact order, made six days previously, had been "a step too far at the wrong time". He ended the memorandum with the prediction that H would refuse to attend contact with the grandparents on Saturday 19 December. That prediction proved correct.
  20. On some date between 11 and 22 December, probably shortly after the failed contact on 12 December, the father, by solicitors, had restored the matter for the judge's further consideration. Thus, on 22 December, he conducted a further hearing. We have an unapproved transcript of the judgment delivered by him that day; and we have the benefit of minor corrections endorsed by the judge, probably as recently as today, upon that document. The judge's concern about the failure to that date of his recent order for contact is manifest on every page. He concluded by saying that, having listened to the evidence and the submissions, he was clear "that the strength of [H's] feelings must be tested a little further".
  21. So, by his order dated 22 December, the judge provided for H's feelings to be tested a little further. To be specific, the judge decided to order that H should go for non-staying contact with the paternal grandparents on 27 December 2009. H refused to go, even as far as the intermediate handover point, on 27 December. Thus it was that, perhaps this time on the application of the grandparents, the judge came to consider the matter yet again, namely last Friday, 15 January 2010.
  22. What evidence did the judge have about H then? He had, first of all, a letter from Dr McPhail, H's GP, dated 13 January 2010. Dr McPhail wrote that he had seen H on 18 December 2009, when H had said that he was unhappy at school, had not been sleeping and did not want to see his father or his grandparents; and that it was at that attendance that Dr McPhail had resolved to refer H to CAMHS. By the letter dated 13 January the doctor reported that he had seen H again on 11 January and that he had been apprised then of problems which had arisen in relation to H's refusal to go to school or remain at school in the first days of the Hilary term. H had explained to the doctor that these school problems were "because of the dad thing" and that he felt "stressed". He was adamant, reported the GP to the judge, that H did not want to go to school because he did not like school and wanted to be at home with his mother.
  23. At the hearing the judge also had the benefit of a report from Mr Tavinor, the "Inclusion Leader" at the school itself. It is dated 12 January 2010. Mr Tavinor reported in the letter that on 6 January the mother had brought H to school but that he had refused to stay; that he had attended school on 7 January and 8 January, albeit choosing to distance himself from his peers at break and at lunchtime and using the learning support room "as a sanctuary"; but that, again on 11 and 12 January, he had refused to attend school.
  24. The other written document before the judge when he made the order under proposed appeal was a yet further memorandum by Mr Fremantle; it was dated 14 January 2010. Mr Fremantle reported that the GP's reference of H to CAMHS had produced a valuable early result in that Mr Sones, a consultant child and adolescent psychotherapist, had come into the case; or, rather, had come back into the case, he having had an involvement about two years earlier in order to help H in the clearly deteriorating situation. Mr Fremantle reported to the judge that Mr Sones had seen H for the first time since two years earlier on 13 January 2010; that Mr Sones was very worried for H; that H had spoken to Mr Sones of wishing that he was dead; and that he was expressing anger about his father and declaring that he wanted nothing to do with his paternal family. Apparently H had also spoken to Mr Sones of having found memories of his father's inappropriate activities with him. Mr Sones was adamant, so Mr Fremantle reported to the judge, that there should be no contact for some months. Then, in the memorandum, Mr Fremantle referred again to Ms Lillitos and added that she had been somewhat taken aback that the extended contact order dated 11 December had been made and unsurprised that it had not been successful. Mr Fremantle then presented his own position, namely that the contact had not worked and would not work; that H was refusing to attend; that the more he was pressed towards contact the more he would resist; and that H was in an unimaginably difficult position. It was the recommendation of the guardian ad litem to the judge last Friday that all contact and court proceedings should halt while H took time to work towards an understanding of his knowledge.
  25. Thus the judge had evidence from the GP; from Mr Sones; from the school; from Ms Lillitos; and from the guardian ad litem -- five professionals. All in effect unanimous: no contact, please, for the time being.
  26. But the grandparents were suggesting a very different disposal. Mr Samuels, on behalf of the guardian who is absent from court today because he is on holiday, has drawn out attention to a position statement filed for the judge's use at the hearing on 15 January. The grandparents, through Mr Tolson's document, contended that the approach which had been adopted by the court on 22 December, in which H's alleged wishes would be the trigger for whether the contact should in fact proceed, was wrong and counterproductive; and that the more the focus was on his wishes, as allegedly stated to his mother or under her influence, the less the contact was likely to happen. The suggestion was made in this document that, as ultimately ordered, there should be a period of staying contact on H's part with the grandparents last weekend, from Friday 15 to Monday 18 January. On instructions Mr Tolson wrote:
  27. "His grandparents should collect him from his mother's home today with the aid of the guardian if necessary and any other enforcement agency, including the police if necessary. He should stay with them over the weekend. His grandparents should take him to school on Monday morning."

    As for the guardian's recommendation, the grandparents submitted that "his position is some distance from any reasonable approach". Then the grandparents forecast that, if the case continued on its present course, they and the father would apply for all forms of enforcement of the order, including an application to commit the mother for contempt; and then they added that "most significantly, an application for a change of residence will be inevitable". They then raised with the judge the idea which found favour with him, that the whole case should be transferred to be heard in the High Court, Family Division. Their sixth suggested reason for transfer was that there might be an application to remove the guardian from acting as H's guardian because of the alleged irrationality of his position.

  28. In his short judgment the judge dealt with the twin proposals that Mr Tolson had made to him. In relation to transfer to the High Court, being an application perhaps surprisingly opposed by the mother and the guardian, the judge agreed that transfer should be effected. There is no appeal against his order for transfer of the entire matter to the High Court, Family Division, Bournemouth District Registry; and in his judgment he expressed the hope that Coleridge J, being the Family High Court Liaison Judge for the Western Circuit, would be able swiftly to embark upon a hearing of the case. We, of course, are concerned with his second determination, namely his accession to Mr Tolson's request for an order for staying contact to begin about three hours later, namely at 4.30pm that very day.
  29. The judge, in his judgment of which we have quite a good note approved by all the advocates then appearing, made no express reference to Mr Tolson's position statement, to some paragraphs of which I have referred. I must be careful what I say in that I have renewed my acquaintanceship with this case so recently. It will be more apt for Coleridge J to consider whether it was even arguably appropriate for the grandparents to raise the spectre of committal to prison of the mother, or of a change of residence, in circumstances in which, so far as I can discern from the long judgment handed down on 11 December, the mother was not adjudged to have exhibited any significant degree of obstructiveness or non-cooperation. Such would surely be the wholly necessary foundation for suggestions of that sort, which in principle raise the temperature so high and set parties against each other so acutely.
  30. If, then, the judge did not refer to the position statement, how did he explain his decision to go down the route commended to him by Mr Tolson? He said that he found the case particularly difficult. He said, obviously correctly, that he could not disregard the views of the guardian or of Mr Sones or of Ms Lillitos. That said, he continued "if an attempt is to be made it has to be made with tact and skill"; and he observed that, following that very day, the guardian would be on holiday and so unable for some time to assist in any handover.
  31. Then, in my judgment, without adequate explanation, the judge adopted Mr Tolson's suggestion for staying contact three hours later. Now, when a judge decides to depart from the recommendation of the guardian ad litem or children's guardian, he is supposed, under our jurisprudence, to explain why he has resolved to effect departure. This judge did not do so. As I have explained, he had in effect five professionals advising him against doing what he did; and one of the professionals, new to the case, was raising, I believe for the first time, a reference to suicidal ideation in H. The judge was transferring the case to Coleridge J because it was so intractable. In my experience, a decision by a circuit judge, however respected, to transfer the case to a higher level is hardly to be expected to be accompanied by his taking the bull by the horns, rejecting the views of the five relevant professionals (and there was no professional in support of what the judge had decided to do) and making an order for contact, there and then, to take effect three hours later. I regard the order for contact as entirely inconsistent with the thinking behind the order for transfer to the High Court.
  32. But let us not forget that the judge's carefully calibrated order for contact in favour of the grandparents, dated 11 December, was that there should be non-staying contact until the summer 2010 and then enlargement; so the judge's reaction to the unfortunate failure of the two non-staying contacts in favour of the grandparents was to bring forward the move to staying contact months earlier than he had, only five weeks earlier, considered it to be appropriate for such contact to begin. Did he in his judgment consider that aspect at all? Unless the agreed note is deficient, the answer is that he did not do so.
  33. In doing his best, in very difficult circumstances, to defend the judge's order, Mr Tolson has suggested to us that a beneficial result of it was that H might be much more likely to go to school on Monday 18 January from the care of the grandparents than from the care of the mother. That suggestion had been foreshadowed to some extent in Mr Tolson's position statement presented to the judge; but, if that was in the judge's mind -- and it did not find expression in his mouth -- where was the evidence to justify a conclusion that the mother was in some way mishandling the task of getting H to school and getting him to stay at school throughout the day; and that such was a task better invested in grandparents whom H did not want to see and who, unfortunately, had had no dealings with him whatever for over a year?
  34. That leads to another reflection: what was the urgency about forcing, or attempting to force, a recreation of the relationship between the grandparents and H last Friday, 15 January? It was not as if there had until recently been a relationship between them which had unfortunately been broken and that every attempt of an urgent character should therefore be made to keep it alive. The relationship, for reasons which are very sad but irrelevant to my analysis, had been interrupted for a considerable period of time. So to force the issue, and not just the issue but also the boy, against all professional advice was, with the greatest respect to a judge held in very high esteem in this court, misguided and plainly wrong.
  35. Today we have yet further evidence, in one sense very concerning but in another sense shining perhaps some ray of hope upon this deeply unfortunate case. It is a letter which Mr Sones has written to the solicitor for H dated 20 January 2010. I have explained that Mr Sones had seen H on 13 January. We see from this letter that he saw him again on 20 January. On the latter occasion, reports Mr Sones, H had said that he was not feeling all right but not feeling as bad as he had in the previous week. Most interestingly, H had also raised the idea of a meeting with his father, provided that some professional person would also be present, such as Ms Lillitos, Mr Fremantle or Mr Sones himself. Of course, Ms Lillitos has been in a therapeutic relationship with H and Mr Sones is in a therapeutic relationship with him; and one respects their disinclination to step out of their consulting rooms. So it may be suggested that, if there is to be a meeting with a professional present, it should be a meeting with Mr Fremantle present: but that is all for the future.
  36. In the letter dated 20 January Mr Sones states his opinion that H clearly needs time and space to process the situation. He writes:
  37. "I would strongly recommend that [H's] wishes and views be accepted by [the father] if he wants to have some hope of repairing the relationship between H and himself and [H] and his grandparents.
    If there is continual pressure on [H] to see his father and/or grandparents when it is so strongly against his wishes I think this will intensify [H's] suicidal feelings and may precipitate some impulsive action on [H's] part. He would see suicide as a way out of an intolerable dilemma […]
    If an order for contact with either [H's] father or grandfather is made when [H] is so clearly telling everyone it makes him feel despairing and suicidal it is going to be very difficult to find a way to help [H]. It is also likely to make contact in the long run unsuccessful."
  38. The ray of hope is, of course, H's suggestion for a meeting with the father, which might begin to unlock the present impasse, including the impasse with the grandparents. That is all a matter for consideration by Coleridge J. Enquiries made at the direction of Mr Scott-Manderson QC, who represents the father, have indicated that Coleridge J is on the Western Circuit and available to hear this matter, at any rate for directions, on 15/16 or, perhaps in particular, on 17 February 2010. The parties are agreed that that last date should be taken so that Coleridge J may make his acquaintance with the case; give any relevant directions; consider, no doubt, H's idea of a meeting; address any issue as to the practical arrangements in that respect; and as Mr Scott-Manderson has stressed this afternoon, confront any issue about the continuing contact of the father with H which, under the order dated 11 December 2009, is next due to take place at the end of February 2010.
  39. This is, therefore, and I apologise, a long judgment to deal with an appeal against an order of great potential importance, but, in temporal terms, of a very limited character. At all events, I would propose to my Lord that we grant permission to appeal, allow the appeal and set aside that order for contact to take place last weekend.
  40. Mr Justice Henderson:

  41. I wish to express my entire and emphatic agreement with everything which my Lord has said, and I have nothing further to add.
  42. Order: Application granted; appeal allowed.

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