Family Law Hub

H-B (Children) [2014] EWCA Civ 1729

F's application for direct contact with his 2 children had been refused. In this judgment, the judge gives permission to appeal - the children were under the false impression that certain allegations against F were true which led to them refusing to have contact with him. The judge ruled that "given the fact that this is likely to be the first case after Re A which considers what a court should do in circumstances where Article 8 is engaged and allegedly breached, I would direct that the full court should be three Lady or Lords Justices, one of whom must be a family Lord or Lady Justice and preferably two of the three should be."

  • Neutral Citation Number: [2014] EWCA Civ 1729






    Royal Courts of Justice


    London, WC2A 2LL

    Monday, 15 December 2014

    B E F O R E:


    - - - - - - -


    (DAR Transcript of

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    The Applicant Father appeared on his own behalf

    The Respondent Mother appeared on her own behalf, assisted by a McKenzie friend, MS S BESANT

    MS ABIGAIL BOND appeared on behalf of the ???

    MS JESSICA WOOD appeared on behalf of the ???

    J U D G M E N T


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    1. LORD JUSTICE RYDER: This is an adjourned application for permission to appeal the order of HHJ Wildblood QC made on 9 July 2014.

    2. The original application came on before this court on 26 November 2014 and I adjourned it to allow the represented parties, that is the elder child, who is separately represented, and the younger child, through her then guardian, to appear before the court and also to invite mother to appear to make submissions if so advised. Everyone has appeared today and mother has attended with a McKenzie friend, to whom the court is grateful.

    3. The proposed appellant is the father of the two children concerned. In the court below the mother and the elder child were separately represented and the younger child was represented through her children's guardian, who has now retired.

    4. The application was father's application for contact with his daughters, who are aged 15 and 13, pursuant to section 8 of the Children Act 1989.

    5. On 9 July 2014 Judge Wildblood rejected the application for direct contact, made an order for indirect contact and made an order pursuant to section 91(14) of the 1989 Act against the father, in effect providing a partial barrier to future applications.

    6. Father was unrepresented in the court below and presents this application as a litigant in person. Mother equally responds as a litigant in person this afternoon.

    7. The proceedings have a lengthy history. Judge Wildblood has heard the proceedings throughout and has given four lengthy judgments, which I have read. They are: (a) a judgment in respect of a fact-finding hearing dated 13 December 2010; (b) a welfare judgment dated 16 September 2011; (c) a judgment in respect of father's restored application for direct contact, following a hearing at which he was not present, dated 9 September 2013; and (d) the judgment of 9 July 2014 which gives rise to the order under appeal.

    8. Father has previously applied for permission to appeal in respect of the order of the judge made on 9 September 2013. On 16 January 2014 I heard that application, which was compromised with the agreement of the father. He agreed to withdraw the application for permission to appeal on the basis that it was open to him to make an application pursuant to Rule 27.5 Family Procedure Rules 2010 to set aside the order. My judgment is available online and I have had the opportunity to refresh my memory of it. I do not propose to repeat its contents today.

    9. The background to this case is that the parents were married on 16 May 1998 and separated in April 2003. There are two children. After separation, father moved out of the former matrimonial home and subsequently married a woman who has two children of her own from a previous relationship.

    10. Until June 2008 father was having regular contact with his daughters, such that they would spend alternate weekends with him and he was involved in some of their educational development and undertook some of the "school runs". The last direct contact between father and his daughters was on 8 June 2008.

    11. On 19 June 2008 mother issued an application for a residence order and the suspension of contact. That application followed events that took place on the weekend of 7 and 8 June 2008. The events were the subject of a fact-finding hearing which occurred on 12 February 2009 which was settled by an agreed form of words to the effect that father's new wife had behaved inappropriately towards the elder girl by grabbing her and pushing her on to a sofa, causing her bruising. Father failed to intervene to prevent the incident and is said to have minimised the seriousness of it.

    12. Contact did not resume after the fact-finding hearing and further allegations were made by the children and their mother, necessitating a further fact-finding hearing. In his judgment of 13 December 2010, Judge Wildblood found the majority of the allegations made by mother against father to be untrue, including serious allegations that he had behaved in a sexually inappropriate way towards the children.

    13. The judge also found a number of issues upon which he found that father had behaved unwisely and insensitively. The judge considered that mother had pursued false allegations against father as a result of, inter alia:

    a. "... an environment and culture within the mother's household in which false and exaggerated allegations were expressed, discussed and allowed to develop and magnify in her mind and in the minds of the children."

    14. And that there were some allegations that mother was expressing against father which were:

    a. "... not true and yet she deliberately voiced them and has continued with them."

    Such conduct, if right, and that is the finding of the court, would be unconscionable.

    15. On 16 September 2011 Judge Wildblood rejected father's application for direct contact with the children. A residence order was made in mother's favour, which father consented to at the conclusion of the hearing, no doubt in the hope that matters might progress positively. It was agreed that the children would attend therapy and that the proceedings would end.

    16. The therapy that was envisaged to take place failed. Father made a fresh application for direct contact with the children. The elder child was separately represented by a solicitor and counsel in the renewed application. In his judgment of 9 September 2013, Judge Wildblood noted that the therapy did not begin until March 2012, for reasons that he described as "feeble". The therapy ended by 23 May 2013. After the final session of therapy, mother had contacted the therapist to say that the elder child had said she was not prepared to return and that the younger child had cried and said the sessions were not helping. Mother had taken the elder child to the general practitioner, who had offered to see her again if she wanted to talk with him. The therapist considered that in the light of this, therapy could not continue.

    17. On 9 September 2013, at a hearing at which father was not present, his application for direct contact was dismissed and an order was made for indirect contact to take place by way of letters and cards sent to the children through their maternal grandmother once every two months.

    18. Father appealed against this order and the permission to appeal application was compromised on the basis that it was open to the father, as had been suggested by Judge Wildblood, to make an application to set aside the same because he had been absent. The parties were also advised by this court to identify an appropriate specialist mediator.

    19. The proceedings continued before the Bristol Family Court. A mediator was, however, identified and a referral was made. On 18 June 2014 the mediator confirmed that mediation in relation to contact could not continue. She confirmed that father had agreed to provide a "good luck" card to the effect that he recognised that both girls needed to feel free to get on with their lives and that he hoped to have some means of keeping in touch indirectly. Father disputes the accuracy of that summary. The younger child was not willing to receive the card or have it read to her.

    20. The mediator reported in her note, which is reproduced at paragraph 26 of the judgment in issue, that father accepted that the girls "do not wish to hear from him". (I say in parentheses that the mediator is one of the most experienced specialist family mediators in England and Wales.)

    21. The judge decided, in discussion with other parties and with their consent, that the "whole issue of contact should be revisited at a substantive hearing on the merits".

    22. Despite the information provided by the mediator, father sought resumption of direct contact and a final hearing took place and the judge heard oral evidence from the parents and the children's guardian. The judge rejected father's application for direct contact, made an indirect contact order and an order under section 91(14) of the 1989 Act. In addition, he prohibited father from attending the children's schools.

    23. At the hearing before this court this afternoon, mother has confirmed that she has moved with the children to an address somewhere close to Greater London and has moved the girls to schools which she says were notified to father in August 2014. Father does not agree to that move or to the change in their educational arrangements. Mother further tells this court that the suggestion that she may remove the children out of the jurisdiction permanently to Australia is not true, and it may well be that she would willingly proffer an undertaking to the court to satisfy father that that is not a risk in this case.

    24. Turning, then, to the grounds of appeal. As pleaded, father's grounds of appeal contain a combination of matters which relate to the previous judgments given in the proceedings concerning his children, as well as matters relating to the order of 9 July 2014. For example, he canvasses issues concerning the extent to which mother has allegedly breached orders in the past.

    25. The grounds are in broad terms. Firstly, that the judge was wrong to refuse father's application for direct contact with the children in light of the findings made against mother and mother's conduct generally. Also, that the judge was wrong to make an order under section 91(14) and that the judge was wrong to order that father could not attend at the children's schools or know their home address.

    26. This case is stark. No one recommended to the judge direct contact, no one was prepared to facilitate the same and, in the context that the continuation of litigation was considered by the guardian and by the judge to be "damaging to the children", it is not difficult to see how such a highly experienced family judge came to the conclusion that short of a transfer of residence there was no option left to the court. No one suggested to him that a change of residence was appropriate and no application has ever been made to that effect.

    27. The judge says at paragraph 3 of his judgment:

    a. "This case represents one of the most abject failures of parental responsibility by two otherwise intelligent parents that I can remember in 34 years as a family lawyer. In my opinion, the mess that these parents have made of their shared responsibility for their children is a disgrace. I predict that it will only be in later life that the manifestations of what these parents have done to their children will become apparent, as the children struggle to function as adults following the skewed childhood that their parents have both chosen to give them."

    28. One might think, in the context of that conclusion, that there was nothing else that could be said, where two teenage girls are adamant to the point of being vicious in their refusal to see their father. Their position is unchanged before this court today, where it has been well represented by two experienced family counsel. But there are matters that underscore the order made by Judge Wildblood that are very concerning indeed.

    29. In answer to the question "Why is this a Re A case not a Re G case?”; it is fair to say that this is one of those cases that fits into both categories, insofar as any family case can be categorised. This is a case in which it is arguable that Article 8 is engaged and that it has been breached and putting the issue of horizontality to one side, the court has an obligation on the stark facts of the case to have looked at every reasonable option to maintain a relationship between a father and his daughters where that father has not perpetrated harm upon the children of the nature that mother alleges. Quite the contrary, he is innocent of the majority of the allegations made against him and of all of the serious allegations.

    30. Furthermore, in the context of what should a court do in the circumstances of this case no one other than the guardian advised the judge in respect of the hearing that led to the orders complained of. Although directions hearings were set up for the purpose of considering whether an expert should be instructed in accordance with Part 25 of the Family Procedure Rules 2010 and there had been at least one previous expert who had advised the court in respect of the children's interest, no such expert was suggested, applied for or considered.

    31. There is a natural and understandable reticence in the family court in obtaining experts that cause proceedings to be delayed or to become overcomplicated to the detriment of the children concerned. However, in this case, not only was there no challenge to the guardian by anybody with professional expertise and both mother and father were litigants in person, but there was a serious question that needed to be answered, which it might be thought could only be answered by an expert. That question relates to the position that the children take.

    32. It is now established to be likely that neither child is aware of the findings that the court has made in the course of the four judgments to which I have made reference this afternoon. It must be arguable that it is not right that a guardian and a court can come to a conclusion without analysis or reasoning in the circumstance that a separately represented 15-year-old and a welfare-represented 13-year-old simply do not know the basis upon which a court has made a decision that the allegations that they believe are true are in fact false. They are about to live the remainder of their minority under that false impression. That is an issue in itself that calls for some assistance. This issue was apparently not canvassed in the hearing in the court below.

    33. Given that I have significant concerns about how it is that one can deduce welfare in the context of a partial analysis of the children's wishes and feelings, and their background circumstances where they do not know the truth of the situation that exists in a case, I have reluctantly come to the conclusion that, despite the fact that continuing litigation may cause them further harm, I will give permission for this matter to go to appeal and for the matter to be heard by a full court.

    34. Given the fact that this is likely to be the first case after Re A which considers what a court should do in circumstances where Article 8 is engaged and allegedly breached, I would direct that the full court should be three Lady or Lords Justices, one of whom must be a family Lord or Lady Justice and preferably two of the three should be. The matter should be referred to the President of the Family Division to enquire whether he is available to sit upon the appeal.

    35. The matter will be listed with an estimated length of hearing of one day. The children will both need to be separately represented. I anticipate that there will need to be an application for separate representation in respect of the younger child. I do not have the material before me sufficient to make that decision today. That application can be made on paper and I will consider the same. If there are any contrary observations by any parties when served with that application, I will of course read those contrary observations as well. But it seems entirely sensible that that which the elder daughter has the younger one should also have. Their views are highly important in the context that I have just outlined.

    36. I ought for the sake of form to say that the grounds of appeal should be amended to take account of the issues I have raised in this judgment. Anybody who has yet to file skeleton arguments, which I think is everybody bar the father, can have permission to file skeleton arguments in relation to the broad issues I have identified in the permission judgment.

    37. So far as mother and father's position is concerned, I make the point that these are serious issues of public general importance. It would be a grave injustice to both of them if they do not have access to lawyers to be able to properly represent their position before the Court of Appeal. I therefore urge both of them to seek to obtain an extension of legal aid and I urge the Legal Aid Agency to consider this to be an issue of public general importance. The agency shall have a copy of my judgment on the permission application with which to consider their position.

    ORDER: Application for permission to appeal granted; appeal to be heard by three Lords Justices, at least one of whom should be a judge with experience in the Family Division, with a time estimate of one day.

    (Order not part of approved judgment)

Judgment, published: 19/01/2015


Published: 19/01/2015


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