A (A Child)

Factual and Procedural Background

The case concerns a girl, referred to as M, born in 1999, whose parents separated in 2001. The father initiated contact proceedings shortly thereafter, and litigation between the parents regarding contact with M has continued almost uninterrupted for over twelve years. Since 2006, there have been at least eighty-two court orders, involvement of multiple judges, numerous children’s guardians and social workers, and representation for M by the National Youth Advocacy Service (NYAS). The case was heard primarily in Sheffield County Court and culminated in an order dated 9th October 2012 by His Honour Judge Goldsack. This order provided that M would reside with her mother, with no direct contact ordered between M and the father, but allowed indirect communication through emails, cards, and presents. An embargo on further applications relating to M was imposed until October 2015.

The father, representing himself, appealed the order, challenging both the final decision and the manner in which the proceedings were conducted. The mother supported the order, emphasizing the importance of respecting M’s wishes and the experienced judge’s careful judgment. The case history is marked by extensive procedural complexity, delays, and multiple professional interventions, including expert psychiatric and psychological reports, guardianship, and social services involvement.

Legal Issues Presented

1. Whether the judge erred in accepting M’s expressed wishes and feelings as a basis for refusing direct contact between M and the father.
2. Whether the systemic failures in the family justice process violated the procedural and substantive rights of the parties under Article 8 of the European Convention on Human Rights (ECHR) and justified a rehearing.
3. The appropriate standard of appellate review in cases involving welfare decisions under the Children Act 1989, particularly in light of the Supreme Court decision in Re B (A Child).
4. The extent to which enforcement of contact orders should be pursued in the face of repeated breaches by the parent with care.

Arguments of the Parties

Appellant's Arguments

• The judge should not have accepted M’s recent statements as a true reflection of her wishes, particularly given her previous willingness to consider contact.
• The court failed to adequately consider the impact of the mother’s implacable hostility and the possibility of parental alienation influencing M’s views.
• The systemic failures of the family justice system throughout the prolonged litigation violated the procedural and substantive rights of both M and the father under ECHR Article 8.
• The appropriate remedy for systemic failure is a full rehearing before a new judge, rather than a final order refusing contact.
• The court failed to enforce its orders adequately against the mother’s repeated breaches, undermining the rule of law and the father’s rights.

Respondents' Arguments

• The judge’s decision was a careful and reasoned welfare determination, given the evidence available, including M’s wishes and feelings.
• The mother and NYAS emphasized that the judge took all relevant factors into account and that no tenable alternative to the order existed.
• Dr Weir, the expert on parental alienation, had accepted that without a change of residence, contact was unlikely to succeed, aligning with the judge’s conclusion.
• Procedural delays and difficulties were largely due to health issues of professionals and the mother, and the court did all it could under difficult circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the prolonged and complex history of the case, emphasizing the systemic failure of the Family Justice System to effectively resolve the dispute and protect the welfare of M and her father. It accepted the judge’s finding that the mother had been implacably hostile to contact and that M’s expressed wishes, though influenced by the mother, were her own at the time of the final hearing. The court recognized that M’s welfare was paramount and that her age and maturity entitled her views to considerable weight.

However, the court identified significant procedural failings, including excessive delay, lack of enforcement of contact orders, inconsistent judicial approaches (notably regarding attaching penal notices), and the absence of the mother at the final hearing without adequate procedural accommodation. These failures collectively amounted to a violation of the procedural requirements of Article 8 ECHR, undermining the fairness and effectiveness of the proceedings.

The court further scrutinized the judge’s welfare analysis, noting a lack of sufficient explanation reconciling apparently contradictory findings, such as accepting M’s wishes while discounting the reasons she gave for them. The judge also failed to engage adequately with expert evidence, particularly the views of Dr Weir regarding the influence of parental alienation on M’s wishes.

Balancing these considerations, the court concluded that although the final welfare outcome might not be wrong in itself, the procedural flaws rendered the decision unjust. The court emphasized the necessity for a full rehearing before a new senior family judge, with proper judicial continuity, case management, and expert involvement, to provide an effective and timely resolution.

Holding and Implications

The court ALLOWED THE APPEAL and set aside the order made on 9th October 2012, which had refused direct contact between the father and M and imposed an embargo on further applications. The case was directed to be reheard before a senior family judge with appropriate authority and experience, other than the original judge who had retired.

The direct effect of this decision is that the father’s application for contact and residence must be reconsidered afresh, with a priority on achieving an effective and timely court process. The court also recommended that a bundle of relevant case papers be sent to the President of the Family Division and the Chairman of the Family Justice Board to facilitate learning from the systemic failures identified.

No new legal precedent was established; rather, the judgment serves as a critical reflection on systemic issues within the family justice system, emphasizing the importance of procedural fairness, enforcement of court orders, judicial case management, and the careful weighing of a child’s wishes and feelings in complex, protracted contact disputes.