Re R (A Child: Appeal: Termination of Contact) [2019] EWHC 132 (Fam) Family Division, 29 January 2019, Williams J

In categories:

The mother, who was profoundly deaf, made an allegation against the father in 2013, when the child was about 7. After investigation, no action was taken by either the local authority or the police. In 2014 the mother and maternal grandmother made further allegations of physical abuse against the father. These were later found to be untrue by a judge. The parties separated in September 2014, when the mother left the family home with the child, complaining again of abuse of the child by the father. In the subsequent legal proceedings, no findings of fact were made and the child began to spend time with the father, progressing from supervised, through supported to unsupervised and eventually overnight contact. In November 2015, the mother alleged that the father had threatened to kill the child and sought an occupation order against him, because he was refusing to leave the family home. On the basis of its own concerns about the mother’s approach to contact, the local authority issued care proceedings in February 2016. By this stage the father was seeking an order for the child to live with him.

All the outstanding applications were eventually considered in 2016. A psychologist reported a positive approach by the child to contact with the father and expressed the view that the child was likely to reach the diagnostic criteria for ASD. The psychologist recommended that the child remain living with the mother, with regular contact with the father and a high level of monitoring by the local authority, with family therapy if needed. This was eventually agreed to by the parents, as was a threshold included in the order, expressed in terms of the child having suffered emotional harm because of ongoing conflict between the parents. The legal representatives all agreed that it was not in the child’s best interests for the court to make findings of fact. A supervision order was made.

Contact became increasingly difficult after this. In early 2017, shortly after another overnight contact, the mother stopped all contact. In May 2017, the father issued an application to enforce the child arrangements order; in September 2017, the local authority applied for an extension of the supervision order. An updated report was produced by the child psychologist. In the guardian’s view, contact would only work if there was further intervention, and such intervention was likely to be damaging to the child, so indirect contact only should be ordered.

In July 2018, the judge made findings of fact, including that the father became angry with the child and shouted at him when it was not necessary to do so, but that the father’s actions had not been such that the child had suffered harm. In relation to the mother, the judge found that she: had been dishonest on many occasions; had encouraged the child both directly and indirectly in his beliefs; had primed the child to make allegations against the father to the police and others which were not true; had, since 2013, engaged in a course of conduct with the intention of preventing the child from having any contact with the father and the paternal family; had, since 2013, had been implacably hostile towards the father having contact with the child;, had alienated the child from the father from 2015 onwards, causing the child significant long-term harm; and had breached court orders. This was against the background, the judge decided, of the mother’s strong and firmly held, though incorrect, belief that the father presented a risk to the child. Despite these findings, the judge determined, agreeing with the guardian, that the child, aged 12 years, was to live with the mother and only to have indirect contact with the father, by means of the father sending letters, cards or gifts, by post once per month for 6 months, and thereafter fortnightly. The judge made orders pursuant to s 91(14) Children Act 1989 to last until 27 August 2019, in respect of spending time with the child and until 27 August 2020, in respect of with whom the child would live. The local authority had originally been seeking the extension of a supervision order, granted in July 2016 but were granted permission to withdraw that application, on the basis that they now considered that the threshold had not in fact been crossed, despite the fact that the judge had found as a fact that the mother had caused the child long-term harm.

The father lodged an appellant’s notice in the Family Division in respect of the child arrangements orders, not in relation to the supervision order. He was given permission to appeal against the decision that indirect contact only was appropriate. An appeal in respect of the supervision order would have been to the Court of Appeal not the Family Division and, given that his principal complaint related to the child arrangements order, he focused his efforts (and his financial resources) on challenging the order of most direct relevance to him and to the child and the mother. The local authority was nonetheless identified as respondent to the appeal; they did not attend.

The High Court judge allowed the father’s appeal and remitted the case to a different judge.

This appeal highlighted a difficulty that both litigants and the court faced where in complex private law cases there was an interface with public law, which could be dealt with at the same level of the judiciary at first instance but where the paths parted company for appellate purposes.

It was easy with the benefit of hindsight to criticise the threshold agreed in 2016. The proceedings had then been ongoing for 18 months, serious allegations had been made by the mother against the father (including several to the police) and serious allegations of emotional abuse or alienation had been made by the father against the mother. Equally, given that contact had appeared to be moving forwards in a positive way with the support of the local authority, it was hardly surprising that all parties had thought it would be counter-productive to contact between the child and the father to embark on a highly contentious fact-finding at that stage. The court was inclined to agree. It was never easy to know when to embark on fact-finding and when to let sleeping dogs lie. Some dogs remained asleep for very lengthy periods and allegations faded into the background. Other dogs who had appeared to be soundly asleep could quickly awaken and deliver a nasty bite as the allegations re-emerged with full force. Differentiating between the two was never easy and there were no clear markers which pointed to one rather than the other. It was of course essential that the social work professionals, the lawyers and the judge expressly considered the issue and the respective benefits of or harm that fact-finding might result in or engender and that this was openly recorded. This approach would be consistent with the practice set out in PD12B and PD12J, para 18 and would ensure that the issue was not overlooked.

One of the findings made by the judge had been that the child had suffered significant emotional harm as a result of the mother’s actions and was likely to suffer further significant emotional harm as a result of the mother’s actions. This particular finding had been contrary to the local authority’s conclusion that the threshold for public law intervention was not met. That finding having been made prior to a final determination of the private law applications and in particular the contact application, the parties and the court should have reflected upon the finding and what further role the local authority might have been required to play in fulfilment of their statutory obligations to the child.

The evidence of the clinical psychologist was that efforts to reinstate contact should be pursued. The effect of her evidence was that the child would suffer significant harm if his relationship with his father was lost. She had considered that the harm he would suffer in his mother’s care could be ameliorated by undertaking therapeutic work to enable the mother better to meet the child’s emotional needs. She had considered that if the mother did not make progress in her capacity to meet the child’s emotional needs, the harm he might suffer in her care could outweigh the harm that would be caused by removing him from her care. The decision to terminate contact and to end the proceedings without further investigation carried with it the inevitable consequence that the child would remain in the care of his mother and be exposed to this risk. The combined benefits of facilitating the re-establishment of contact and addressing the mother’s capacity ought to have led to the conclusion that further enquiries were required to address those issues. The judge had placed insufficient weight on the medium to long term harm that the child might suffer, as compared to the short-term harm that he would suffer by the continuation of the proceedings or further work on contact.

Although no party had put before the court evidence of the therapeutic resources that could be deployed to address the risks identified by the psychologist, it was clear that there was a gap in the enquiries made, as a result of the parties not having been in a position to pursue to a conclusion the enquiries the psychologist had recommended. In those circumstances the court should not have proceeded to a final determination that there should be no contact, as there were still potential steps that could be taken to promote contact. The end of the road had not been reached.