Family Law Hub

H (A Child) [2013] EWCA Civ 1440

Grandmother's application for permission to appeal an order for indirect contact between her and her granddaughter after a previous order for direct contact had failed because the child refused to see her. Application for permission to appeal was granted.

  • Case No: B4/2013/1672

    Neutral Citation Number: [2013] EWCA Civ 1440



    (HHJ MOIR)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Wednesday, 30TH October 2013



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    (DAR Transcript of

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    The Applicant Maternal Grandmother appeared in person

    The Respondent did not appear and was not represented

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    (As Approved)

    Crown Copyright

    Lord Justice Ryder:

    1. This hearing is an application for permission to appeal with appeal to follow on. It appears from enquiries undertaken during the short adjournment today that the representatives of the child concerned are not on the record and have accordingly not officially been notified of the fact that this matter is listed for the full appeal to follow on if permission is granted. That is a serious procedural error, which this court will investigate further at the full hearing when that occurs.

    2. The proceedings are private law children proceedings relating to A, who is now nine years of age. A's mother and father are separated and have been for some time. Her mother has been in a relationship since April 2010 with another man, to whom she was married on 18 June 2011. A lives with her mother, mother's partner and their baby child and is known by mother's new married surname.

    3. In January 2013, Holman J described A's home circumstances as "a very happy family unit". A's maternal grandmother, who I shall call Mrs C, is the applicant in these proceedings and she appears before this court in person. For several years, Mrs C played a significant role in the lives of both her daughter and granddaughter. She lives a few miles away from A's family home. A had very regular contact with her, including staying contact almost every weekend until events which took place in February 2011. In that month, all contact between A's mother and Mrs C came to an abrupt end. Mrs C made an application to the court for contact with her grand-daughter, and it is that application which has been before the county court ever since: that is, for some two-and-a-half years. In an important judgment delivered by Holman J, sitting as an additional judge of the county court in Newcastle on 29 January 2013, there is recorded the sad procedural history, which had failed to provide the judicial continuity to, or any resolution of, the application before the court. By the time the application came to be heard by him, the child, A, had been joined as a party. I was told that was in April 2012, and she was represented by a Rule 16.4 Children's Guardian appointed by Cafcass.

    4. The Guardian reported to the court that A was very resistant to any contact with both her father and, separately, her maternal grandmother. In the January hearing, the judge considered the outstanding application of A's grandmother. He recorded the dispute that had caused A's mother and grandmother to be so alienated from each other that A's mother will not contemplate speaking with her own mother. It is described in his judgment as follows:

    "On the weekend of 19 and 20 February 2011 A was staying with her grandmother and as Mrs C alleged made certain statements to her to the effect that mother's new husband's father, that is the step-paternal grandfather, had touched her inappropriately. A contemporaneous social work record indicated that Mrs C had responded to A's complaint by telling her not to tell anyone and that A had repeated this instruction to a social worker."

    5. Holman J found as a fact that A had said something to Mrs C on that weekend and that Mrs C had taken advice from relatives and had subsequently told the child's father without first speaking with A's mother. A's father had himself told Children's Services, who investigated the allegation. A firmly denied the inappropriate touching and the inquiry was brought to an indeterminate close. The allegation and the investigation caused a family rift of some consequence, but interestingly, as Holman J discovered, that was not the reason for the breakdown of contact between A and her grandmother. Contact had in fact broken down some ten days before the allegation was made on Saturday 26 February 2011. A was at a cousin's birthday party when, within her hearing, her mother and grandmother had a significant row about what the judge described as "petty issues" not relating to A, which he said hinted at a considerable history of familial dispute between the two. The consequence of the row was that A did not thereafter see her grandmother, as would have been the normal routine, and has not done so to this day. The family dispute has become entrenched and now involves other adults and children.

    6. So what then, in this difficult circumstance, did Holman J do? In short, he allowed the family members, as litigants in person in the court before him, to set out their case and ask questions of each other, where necessary through himself. There could not be a better example of good practice. He came to conclusions about the findings of fact in issue that I have summarised and assessed Mrs C to be a forceful woman, who had done nothing which could justify her exclusion from A's life. He considered the welfare checklist in section 1(3) of the Children Act 1989 and concluded that the good and positive relationship between grandmother and child was worthy of preservation or reintroduction. He specifically considered the evidence and advice of the Children's Guardian, which included the very firm wishes and feelings of A that she did not want to have anything to do with her grandmother. The judge rightly commented that, as a matter of rational analysis, the reasons for not having contact did not stand up to examination. The judge addressed A's perception that she was wronged and disagreed with her.

    7. Given the recent authorities in this court, the judge, rightly if I may say so, identified the responsibility of the court to respect the private and family life of A, her mother and her grandmother, and that includes, by a positive obligation inherent in that right, to give effect to A's welfare, not simply her wishes and feelings. Therein lies the difference between the opinion of the Children's Guardian, which was rejected by the judge, and the judge's welfare conclusion in this case. Holman J evaluated A's welfare, rejected the advice and directed two contact visits between A and her grandmother. He required the guardian to tell A what had been decided, why, and the fact that she had been listened to. He acknowledged that contact might not be successful and he provided for a review and future judicial continuity. This court is told by grandmother today, not surprisingly having regard to the seniority and experience of Holman J, that he seriously considered that A should come to court to have matters explained to her by him but sadly there was no opportunity for that to occur. In parenthesis, I add, as will become clear, that would have been a very good idea.

    8. Contact did not take place as directed. It is certainly the case that the guardian had more than one extended conversation with A about it. This court has no adequate record of that conversation, and on a matter of this importance one would expect a record to exist. I direct that the Cafcass Children's Guardian's record of the conversations with A be made available to this court within 14 days of the date of this order.

    9. The Guardian wrote to the court. So far, so good. The guardian then wrote a short addendum report justifying the circumstance that A did not want contact and opining that her view should be respected. This court has had the opportunity to see for the first time the letter that was written to the county court by the Children's Guardian, which arguably puts into issue the fact that he apparently thinks his opinion is more valid about the welfare of this child than the determination come to by Holman J. That is no doubt a matter that the full court can consider in due course.

    10. The proceedings came before two different judges despite Holman J's plea for continuity. The first gave directions because the guardian was absent on a day when he said he would be present in court. That was unacceptable and the matter then had to go off to a further adjourned hearing which eventually became the object of this appeal.

    11. On 20 May 2013 Judge Moir substituted indirect contact three times a year for the direct contact order made by Holman J. She had before her A's mother, A's grandmother, Mrs C, and the Children's Guardian, who was legally represented. She had at least one document from each of them. It is apparent from what this judge was told that, although no formal evidence was given to Judge Moir, questions were asked by her of grandmother, and grandmother asked at least a question of the Children's Guardian. It is also clear that Judge Moir had the judgment of Holman J. Judge Moir was told in plain terms that A had refused to attend the contact with her grandmother, and she was advised that matters should now be allowed to rest. The judge took the view there was nothing practicable that the court or A's mother could do in that circumstance and substituted indirect contact, as recommended by the guardian. It should be remembered that this was precisely the situation that confronted Holman J only three-and-a-half months before when he made a merits-based decision about the application before him, having heard evidence and having heard that evidence cross-examined.

    12. From the grandmother's perspective it looks like the reasoning behind the decision of a High Court judge has been ignored. She tells me that it looks like Cafcass going back to the county court when the judge has gone back to London to say: I knew this would not work and it has not. I very much doubt that is the case, but, in fairness to grandmother, I make her appeal point perfectly plain, so that it can be considered in due course. It may of course be entirely right, on the facts of this case, that A will not be able to be brought into contact with her grandmother, because her welfare may predispose the court to consider that that would place her at a risk of emotional harm. However, there is a prima facie case on the materials before this court of what I would describe as "unfinished business" by the court.

    13. There is at least a case that Judge Moir should have been asked by the Children's Guardian to see the child and that Judge Moir could then have considered whether that was an appropriate step for her to take given that was something that Holman J would himself have undertaken had there been time. It is a rare case where a child declines an invitation to come and speak to a judge at court and to have the truth of the facts found by the court explained. There is at least a case on the materials before this court that this needs to happen i.e. A needs to understand the truth so that she will not suffer emotional harm in the long-term. Furthermore, when that happens it will then be possible consider whether, at court, grandmother and child can be reintroduced. In answer to the oft repeated question by practitioners, "what else can a court can do where it is apparent that there is resistance to its orders being implemented", one answer is that in the appropriate case the court can be proactive and implement them itself where it is safe to do so. I cannot say whether it is safe to do so in this case. What I can say is that the full court will consider the question, and whether the court below should have gone further, at a hearing which will take place well before the Christmas vacation at the end of this year.

    14. I therefore give permission to Mrs C to bring this appeal. I direct it in for a half-day appeal with three Lord or Lady Justices, one of whom should be myself or another family Lord Justice if I am not available. I shall direct the Cafcass Children's Guardian to be present and not just represented, and I shall direct that the Cafcass guardian provides a record of the conversations that he has had with A, to be filed with this court and served upon Mrs C and the child's mother well before the appeal so that the parties can consider what in fact has transpired since the order of Holman J.

    Order: Application granted

Judgment, published: 13/11/2013


Published: 13/11/2013


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