A (A Child) [2013] EWCA Civ 1104

Appeal in a long running contact case against a no direct contact order. Guidance given on applicability of Re B (A Child) [2013] to private law cases and the correct approach to implacable hostility to contact cases

The case concerned a girl, M (born in October 1999) who was therefore almost 14 years old. Her mother ["the mother"] was 48 and her father ["the father"] was 60. The mother had significant and long-standing mental and physical health problems She had been variously diagnosed as having an emotionally unstable personality disorder, displaying paranoid personality traits and periodically suffered from depression. The mother had on occasions abused alcohol and/or illicit drugs. The mother also suffered from Crohn's disease. 

The parents lived together prior to M's birth and separated in May 2001 when M was only 21 months old. The first application for contact was made by the father in October 2001. The litigation concerning M between the parents continued, almost without interruption, for the next twelve years. Since 2006 there had been eighty two court orders, seven judges had been involved in the case at some point and in excess of ten CAFCASS officers had played a part. The final hearing took place in October 2012. The mother was unable to attend because she had only recently been discharged from hospital after admission for complications arising from Crohn's disease.

On 9 October 2012 the trial judge ordered that M reside with her mother and ordered that there should be no direct contact between M and her father. Indirect contact on M's birthday and at Christmas was provided for and the father was permitted to obtain reports and information from M's school. An order pursuant to s.91(14) Children Act 1989 was also put in place in respect of both parents until October 2103 when M would be sixteen. The father appealed the order. The first limb of the appeal was that the judge was wrong in the exercise of his discretion to make an order for no direct contact in the circumstances of the case. The second was that where the court itself admits (as the judge did at the final hearing) that there has been a systemic failure in the provision of family justice to the case before it, the outcome should be a full re-hearing, properly undertaken before a new judge, rather than the making of an order for "no direct contact".

The leading and lengthy judgment of the Court of Appeal was given by Lord Justice McFarlane. He accepted and highlighted at the outset of the appeal the trial judge's clear finding that the father was unimpeachable, there was no doubt that the mother has always been implacably opposed to contact to the father and to the extended paternal family and that whenever M had contact with father it was positive and that M loved her father.

McFarlane LJ recorded the forensic history of the application and the development (or not) of contact. McFarlane LJ noted that from the earliest stages of M's life contact had not taken place as agreed or ordered and when contact had started to take place but was due to develop this was inevitably interrupted by the mother's complaints about contact and the developing assertion that M was unwilling to go. During the earlier stages of the 12 years of litigation, the mother asserted that M had made allegations that her father had sexually abused her. A five day fact finding hearing took place which concluded that the alleged abuse had not occurred. Another feature of the case was that for a period the mother's mental health deteriorated and as a result the father was granted a Residence Order and M lived quite happily with him between February and November 2007. Thereafter, M returned to live with her mother as she had expressed a preference to do this and the mother has expressed a commitment to promoting contact between M and her father. This commitment was not honoured. The most recent direct contact between M and the father had taken place in October 2011 and February 2012 and both had been described as positive and enjoyable experiences for M. By the time of the final hearing M had been stating for approximately a year that that she did not want contact with her father and that she was frightened of him. It was the view of her Guardian that her wishes and feelings should not be overridden and this view was also expressed by Dr Hall, Chartered Clinical Psychologist who had been instructed in the case since 2007. A second expert Dr Kirkland Weir had also been instructed. Dr Weir's first report was in July 2011. He also observed contact and concluded that the mother could not be trusted to support contact and hid her opposition to contact behind M's stated wishes and feelings. Dr Weir recommended that residence should be genuinely shared by the parents and, failing that, there were grounds for M moving to reside with her father. He strongly recommended that the court should consider an immediate increase in contact. By the time of the final hearing some 15 months after his report and in the context of extremely limited direct contact, Dr Weir was less supportive of a transfer of residence.

McFarlane LJ considered the conclusions reached by the trial judge and in particular examined the weight which he had placed upon the expressed wishes and feelings of M in light of her age. In this regard, the trial judge had reached a clear conclusion that there was no way at that time to enable the father to have meaningful contact with M as she simply would not attend. The trial judge had accepted that M loved her father and enjoyed contact but was torn by her loyalty to her mother who had serious medical problems and whom she knew was wholly opposed to contact. Finally, the trial judge was persuaded that it was time for a line to be drawn under the proceedings which had continued throughout M's life and M should be shielded from further litigation. In essence, the judge concluded there was nothing else that the court could do.

McFarlane LJ reviewed the law in respect of the weight to be attached to a child's wishes and feelings and highlighted the case of In Re D (A Child) [2006] UKHL 51; [2007] 1 AC 61. He also endorsed the decisions in (Re J (A Minor) (Contact) [1994] 1 FLR 729) and (Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48) in respect of intractable contact disputes. Finally, McFarlane LJ expressly endorsed the robust approach taken in the case of Re S (Transfer of Residence) [2010] EWHC 192 (Fam); and noted the judge's view in that case that whilst the child's strongly held view were entitled to respect, as a result of alienation they may be irrational and also unreliable.

McFarlane LJ then examined the relevance of the Supreme Court decision in Re B (A Child) [2013] UKSC 33. He observed that whilst not all orders under the Children Act 1989 relating to children will be of sufficient import to engage Article 8 (for example, an order which merely defines the time of day and/or place for contact), the impact of Article 8 is by no means confined to public law orders. There will be a range of private law children orders which engage Article 8 and which must now be approached on appeal in the manner established by the majority of the Supreme Court in Re B. An order refusing all direct contact between parent and child will fall within the parameters of Re B. Therefore, the trial judge's task in a "no contact" order in a private law case is not only to exercise his/her discretion but also to comply with an obligation under HRA 1998, s 6(1) not to determine the application in a way which is incompatible with the Article 8 rights that are engaged. In this regard the 'plainly wrong' criteria in G v G would be 'inapt' for such an appellate review.
 
McFarlane LJ observed that what was unusual in the case before him was that the father sought to hold up the entirety of the court process, running back over the course of more than a decade, in support of his submission that the system as a whole has failed to meet its duty to afford paramount consideration to M's welfare and to respect M and her father's Article 8 rights to family life. McFarlane LJ accepted that the trial judge was correct in separating his view on that topic from the judicial task of determining the welfare outcome in accordance with s.1 of the Children Act 1989.. However, he observed that on appeal, the matter is not as straightforward; the decision in Re B has clarified the appellate court's task as being that of conducting a review of the discharge by the lower court of its duty under Human Rights Act 1995, s. 6 not to act in a manner which is incompatible with an ECHR Convention right. Therefore, where what has taken place in the lower court demonstrates a process which is not compatible with a party's Article 6 and/or Article 8 rights to procedural fairness, the sharpened focus provided by Re B makes it plain that the appellate court has a duty to intervene. Mcfarlane LJ also highlighted that this principle did not represent a change as it was reflected within the Civil Procedure Rules, r 52(11 )(3): "The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity ...".

McFarlane LJ went onto consider the impact of delay in the case and noted the recent consideration of this point by the ECtHR in Kopf and Liberda v Austria (Application No 1598/06) [2012] 1 FLR 1199. McFarlane LJ explored the particular aspects of the court's intervention which may have contributed to the outcome in this case. In particular he emphasised the need for the judge to resolve to enforce a contact order before the order was made (noting that penal notices are no longer required as a result of the Children Act 1989 s. 11I). Further, a judge dealing with this type of case should formulate a case strategy and should stick consistently to that strategy so that all parties and the judge know what the court plainly expects to happen; this of course included supporting the orders made by enforcement. Finally, implacable hostility must be identified and addressed at the earliest opportunity. In this regard McFarlane LJ highlighted the cases of Re L-W (Enforcement and Committal. Contact), CPL v CH-W and others [2010] EWCA Civ 1253; [2011] 1 FLR 1095 and A v N (Committal. Refusal of Contact) [1997] 1 FLR 533 and Re S (Contact Dispute. Committal) [2004] EWCA Civ 1790; [2005] 1 FLR 812. McFarlane expressly endorsed the approach taken by Mumby J (as he then was) in Re L-W and the need in an intractable contact case for judicial continuity, judicial case management including effective timetabling, a judicially set strategy for the case and consistency of judicial approach.

In light of the above, McFarlane LJ concluded that collectively the combined interventions of the court over this very extended period had, from a procedural perspective, failed to afford due consideration to the Article 8 rights of M and her father to a timely and effective process in circumstances where there is no overt justification for refusing contact other than the intractable and unjustified hostility of the mother. He concluded that the failure he identified was of such a degree as to amount to an unjustified violation of M's and the father's right to have an effective relationship with each other and their family life under ECHR, Article 8.

The father therefore succeeded on the second limb of his appeal. However, this did not automatically justify a rehearing in the event the welfare determination was regarded as sound. McFarlane LJ accepted the father's submission that the trial judge had not sufficiently analysed how much weight he should attach to M's stated wishes and feelings. The evidence on this issue was conflicting but this conflict was not addressed. Further, he had not addressed Dr Weir's evidence that M's views should not be used as a principal basis for decision making and failed to explain why he disagreed with the expert on this key point. Finally, McFarlane LJ felt there was a serious imbalance at the final hearing that was generated by the mother's absence and it was therefore possibly premature to conclude that nothing further could be done but to refuse contact.

While McFarlane LJ did not conclude that the outcome ordered by the judge was, of itself, wrong and therefore to be set aside, he was sufficiently concerned about the process of these proceedings as a whole, which he had held had violated the Article 8 rights of both M and her father, and also by the deficits in the judge's analysis to conclude, in the words of CPR, r 52(11)(3), that the outcome is 'unjust because of a serious procedural or other irregularity'. The order of the 9 October 2012 was therefore set aside and the father's application for contact/residence would be re-heard. The case would not return to the trial judge but would be allocated to a High Court judge (or a deputy) who would conduct all future hearings.  Finally, McFarlane LJ also suggested that thought be given to the instruction of a multi-disciplinary team to assist in moving the case forward.