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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> J-S (A Child), Re [2002] EWCA Civ 1028 (5 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1028.html Cite as: [2002] 3 FCR 433, [2002] EWCA Civ 1028, [2003] 1 FLR 399

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(ON APPEAL FROM THE LIVERPOOL COUNTY COURT
(His Honour Judge Lynch)

		Royal Courts of Justice Strand London WC2 Friday, 5th July 2002

1. LORD JUSTICE WARD: This is a father's appeal against orders made by His Honour Judge Lynch in the Liverpool County Court on 15th March 2002, when he ordered that the child, R, with whom we are concerned should have no direct contact to his father but only indirect contact, the father being allowed to send the child a card and present at Christmas, on his birthday and at the start of the summer school holiday each year, provided they were sent to the mother's solicitors. The father's application for a parental responsibility order was refused. By an amendment made under the slip rule a review which had been fixed for August 2002 was vacated.
2. The father is a 42 year old Merseyside fire officer. The mother is a 33 year old Australian. She has a son, J, soon to be 10, who is the child of a previous relationship. The parties met in about September 1997 and began to live together in about December 1997. They never married. R was born on 10th December 1998. He was registered at birth as the father's child and was given names which reflect both his father's name and his mother's name. The father was, in the early years of the life of this child, an active parent, playing his part in the care and upbringing of the baby. Unfortunately, the relationship deteriorated and the parties separated in about April or May 2000. Until about December 2000 R spent four days and three nights of each week with his father. When the mother sought to reduce that contact the father applied to the court on 12th January 2001 for orders for staying contact and for a parental responsibility order.
3. The mother alleged that the father was a man who had treated her with violence and was intimidating and harassing her. That led to the court directing that the matter be listed "for a finding of fact hearing as to interim contact and whether or not there has been domestic violence and/or harassment". That was heard by His Honour Judge Lynch on 23rd May 2001. The father appeared in person. The judge accepted "without hesitation" the mother's allegations and rejected the father's version where there was a difference between them. On his own admission the father had accepted what the judge described as "deplorable conduct towards the mother which, even on his own version, would entitle her to the protection of a non-molestation order".
4. For the judge the "more important allegations" were, as he found, that in December 1999, because of "a very, very difficult emotional situation" for the father following the tragic death of a teenage step-son, the father threw a shoe at a light switch but it hit the mother who was standing in that direction. In April 2000, after they had separated, he forced his way into the house, ordered her to make him a cup of tea and pushed a hot tea bag in her face. In June 2000, seeing her with another man, he hit her across the face and chipped her tooth. In July 2000 he entered her house without permission. In August 2000 he was abusive to her. In March 2001 he filmed her at her place of work. The judge concluded:

"He has sought to use contact as a method of controlling her. If he carries on in this way he will break his link with his son."

5. The father made submissions to us in which he sought to challenge those findings of fact made by the judge. Although we listened to him as a matter of courtesy as a litigant in person, we had soon to point out to him that he had not sought to appeal against that decision and that this court was therefore bound by those findings and would treat them as matters upon which we must rely and upon which the judge was, of course, later entitled to rely.
6. The outcome of that hearing was, however, dependent upon the proper application by the judge of the principles established in Re L (Contact: Domestic Violence) [2000] 2 FLR 334. The judge correctly held that he had to weigh the seriousness of the violence or harassment, the risks involved and the impact of such conduct on R. The important point to note is that, notwithstanding the adverse findings he made against the father, he nevertheless ordered interim contact to take place every eight days, between 10.00am and 5.00pm, until the matter could be reviewed in August.
7. He made it perfectly plain in his judgment that much depended on the father's behaviour between then and the end of August. He said, for example:

"If he is violent towards the mother, actual violence or threats of violence or harasses her in any way, his prospects of contact with his son are poor. So it is very much in his hands."

8. In another passage he said:

"I am going to give father one final opportunity to demonstrate that he will change and will no longer use or threaten violence or harass the mother. His conduct between now and the end of August will be put under the microscope."

9. The matter was therefore left in this way at the conclusion of that first hearing in May 2001:

"On 31st August I will make a final decision on contact. I have made my findings of fact about the violence and harassment to date, those matters will not be reopened in August."

10. The August hearing was in fact adjourned, at the father's request, eventually to 29th October 2001, when an order was made by consent that the father have interim visiting contact every eight days as before, the matter to be listed for further consideration on 5th August 2002.
11. No doubt a factor leading to that consent order was the children and family reporter's report of 24th August 2001. She had recorded that the mother admitted to:

"... very ambivalent feelings about contact between [R] and his father. She recognises that [R] has a right and a need to know both of his parents ... However, her experience of [the father] makes her concerned for [R] when he is in his father's care. She describes [the father] as an intense, obsessive and demanding individual both in relation to [R] as well as her ... [The mother] maintains that part of the problem lies with [the father's] need to retain some control of her life ...

Nevertheless, [the mother] believes that [R] is happy within the current arrangements, although sometimes tired after visits ..."

12. The reporting officer's opinion was that R's needs did seem to have been met in spite of the problems that had arisen between the parents. There was even some cause for optimism in the future if the strength of each party's feelings began to reduce in time. Her conclusion was that:

"... the important thing for [R] is that he maintains a regular and frequent level of contact with his father".

13. Sadly, everything was soon about to change. On 7th November 2001 the father referred allegations of physical abuse by the mother's partner (known to the boy as J-man) and allegations of neglect to the Social Services Department. It led to an investigation. The mother's response was to terminate contact. The father therefore made an application to enforce the order for contact. That is the hearing which came before His Honour Judge Lynch for a day on 8th March 2002 and led to his making the order which is now under appeal.
14. The judge characterised the issue in this way:

"It is right to observe that since May of last year the father has not used or threatened violence to mother. He has not entered her home against her will. He has not harassed her at work or at home on the telephone. The complaint is the continuation of unwarranted referrals to Social Services and suggesting to [R], putting into his head false ideas, that his mother's partner was hitting him."

15. With reference to the referrals, the judge said:

"I made it clear to the parties that I had made findings of fact as to what had happened prior to 23rd May 2001. I wanted them to confine their evidence to what had happened since. It was, however, in the light of mother's allegations of the campaign of malicious complaints to Social Services, necessary to investigate in some detail the four referrals between June 2000 and November 2001."

16. We were told that the judge made an approach to the local authority, who were able to supply him with copies of the papers they had in respect of the first and third referrals. The first was made in June 2000. The father was complaining about a horse-shoe cut or bruise above the boy's right eye. It would seem from the Social Services record that at first the mother said no more than that the injury was the result of a fall, although it seems that the father suspected that the mother's new boyfriend (not J-man) was responsible for it. Later the mother explained to the father that the boy had fallen whilst in the care of a babysitter, and the father was able to confirm from the babysitter that that was in fact what had happened. The record shows that the father had not wanted the Department to get in touch with the mother in case she stopped him from having contact with R, and so he sought to withdraw the complaint. Social Services had, of course, a duty to investigate, and did so, but they were soon satisfied by the mother's explanation. I note that this incident occurred during the time the father was having his four days and three nights of contact and that it does not appear to have caused any particular difficulty with the mother at the time. It certainly did not lead to a diminution of that contact.
17. The second referral was made on 28th February 2001. This led to a visit by the children's inspector, who was investigating whether a toddler group at the mother's place of work needed registration. The question was, who made that referral? The judge expressed this view:

"Mother says that is another example of father harassing her with malicious complaints. I appreciate this is before my decision of 27th May when I said that I wanted to see some change in father. But it is still very relevant because it bears very much on father's attitude and his credibility as a witness."

18. Indeed, the judge felt:

"... it was such an important matter, bearing on father's attitude and credibility, that even though I had heard all the evidence and the submissions by Friday 8th March I was not prepared to give judgment until I received the documents relating to the referral from Social Services."

19. The father's explanation to the judge, in a nutshell, was that he had been speaking to his companions at the fire station about the difficulties he was experiencing. The station officer, a Mr A, overheard the conversation in which the father was asking about whether premises with child care facilities needed registration. The father said that he was reluctant to mention the mother's position, but was forced into it by Mr A, leaving him no option but to give information to the fire officer. The judge found that difficult to believe.
20. The documents from the local authority were apparently delivered to the court late on the following Tuesday and, although the judge records that they were sent to the parties and were certainly received by the mother's solicitors, he accepted that the father did not receive his copy and that he only had sight of the documents minutes before the hearing resumed on 15th March. The documents showed, said the judge, that Mr A, the Birkenhead fire officer, was making the allegation on behalf of a third party who wished to remain anonymous. The judge held that that was "hardly the language of an official Fire Brigade inquiry".
21. He added:

"I find it very disturbing that Mr [A] should have made this referral in this way. I am particularly concerned about the entry in the diary sheets for 28th February; when Mr [A] is told that there is no substance to the allegation Mr [A] says it would be okay to throw away the report he had been asked to put in writing. That is his letter on Fire Brigade notepaper to Mr [K] on 27th February.

I have no doubt in my mind but that father instigated this complaint and has tried to mislead the court into believing that he had no option but to volunteer this information. He did it solely to harass mother."

22. The father submits to us, and I see the force of his submission, that the judge had used this material as a "litmus test" of the father's attitude and credibility. The father complains that he was twice put at a forensic disadvantage: the first time when the matters were raised, even though they had occurred before the May judgment, the judge having said that those earlier matters were not to be resurrected; and the second when he had inadequate time and opportunity to deal with the information which the documents in fact disclosed. There is force in both those complaints. The Social Services Department had written to the mother on 28th February 2001, thanking her for her co-operation and commenting on her concern that the allegations may have come to the attention of the Social Services Department "via contacts of your former partner on whom you have a non-harassment order". I am not sure that there was in fact such an order in existence at the time, but it matters not. If the mother was concerned about it, it is strange that she did not rely on those matters at the May hearing.
23. As to his second point, the father now seeks to put in fresh evidence from Mr A, who is said to be a senior fire officer: that is to say, his superior officer, but one with whom he does not usually serve; there is no close connection between them. Mr A, from the papers put before us, would vehemently deny the Social Services comment that this was "a possible case of collusion between two Fire Service officers". Mr A says that he was acting officially and of his own initiative following initial information which had obviously come from the father. He would add that the father's concern appeared to be about the safety of his son, who used to visit the creche.
24. For my part, I would admit that fresh evidence, which satisfies the Ladd v Marshall requirements. Nevertheless, the approach to that fresh evidence is, in my judgment, for the court first to consider whether or not the appeal should be allowed in any event. It is only in the event that the appeal is to be dismissed that the court need consider whether the fresh evidence requires the court to remit the matter to the court below for further consideration. So for the moment I proceed on the basis of the judge's findings.
25. Taking his finding at its face value, it must still be remembered that this was an incident which occurred before the first judgment; and, moreover, that it was an incident of which the mother was aware and which she clearly did not regard as being significant enough to raise before the judge in May 2001. The conclusion, to my mind, is irresistible: had that finding been made in May 2001, it would not, or should not, have affected the conclusion because it would not have been shown to have been an incident of harassment sufficiently serious as to affect the mother's parenting ability or to tip the balance from contact to no contact. It was, at most, another straw in the wind justifying the judge's warning to the father not to engage in violence or harassment in the future. As I have already set out, the judge found that the father had not used or threatened violence, had not entered her home against her will or harassed her in any other way. The conduct which the judge warned would be put under the microscope was, therefore, "the continuation of unwarranted referrals".
26. The next referral took place on 7th November. Father was concerned that R had been hit in the face by his mother's partner. He was unsure whether marks under his eyes were bruises or tiredness. He was concerned about a change in R's character and his references to hating J-man. He was also worried about R's reluctance to go home at the end of contact. I will deal with a specific incident of those difficulties when returning R on 20th October; but, dealing generally with the other matters, the judge concluded that R had not been abused by anybody and he concluded that father had "been putting words into his son's mouth and just continuing his harassment of the mother".
27. That finding, to my mind, represents only part of the picture which these facts inevitably present. The boy was undoubtedly becoming unhappy to return to his mother, as the video demonstrated to the judge. There was a new man in the mother's life and inevitably that required adjustment for this child, and possibly for J. Comments made by R were seized upon by the father, who presents as over-anxious and over-protective, and there is no doubt that the matter spiralled rapidly out of control from the first occasion when father became concerned (which, in the chronology he has put before this court, begins in about September, when the first difficulties about returning the boy seem to be coming to a head). The judge was of the view that the father was "not just telling Social Services about his anxieties" and he took the view that this was a malicious complaint; yet he observed that the father knew full well what he was setting in motion.
28. That causes me anxiety because the judge failed, in my view, fully to follow through that conclusion. What the father knew full well was the experience of his first referral. That was not only that the local authority were likely to investigate the matter (the aspect upon which the judge concentrated), but also (the fact that the judge ignores) that the certain consequence would be that the mother would refuse the father any further contact. It seems to me extraordinarily difficult to understand why this father would choose to harass the mother knowing that it would cost him the contact he holds so dear. His approach to the local authority made it plain what he was anxious about. He explained to them that he wanted to meet with them before an investigation was carried out. He made it plain that he wished to try to discuss the matter with the mother if at all possible because he was aware of the ramifications for himself and his son were the matter not to be handled with the utmost sensitivity. The inference adverse to the father is that this is another example of his over-anxious, over-protective, even obsessive conduct; and that criticism can properly be levelled at him. The referral may have been unwarranted in the sense that, as the judge found, the boy had not been abused; but the referral was not, in my judgment, likely to have been made without the father believing, however wrongly in the event, that there was some cause for concern.
29. The fourth referral occurred on 20th December 2001. The judge was not able to accept the father as a credible witness of the events which precipitated that referral. He appears to have absolutely rejected his evidence, even though that was the only admissible evidence before him. On that occasion the judge records the incident as the father driving by when he saw the mother's partner forcibly dragging R by the arm, causing him to stop and reverse, at which point the man picked up R and ran away with him. The judge simply did not believe that account. He said that he knew enough of the father to know that if he had seen that happen he would have intervened and would have taken the boy away from the man. There was no evidence from the partner as to what happened. The mother gave a hearsay account of it.
30. It seems to be common ground that the man ran away with R. The fact is that there was some incident. The fact is that, even though something had happened which caused the man to run away, the father did not follow in hot pursuit. He did not intervene as the judge expected he would have done. It left the father on the horns of a dilemma. He did not know what to do. He spoke to the CAFCASS officer and was advised to report the matter to the Social Services, which he did. As I understand it, Social Services did not find there to be anything sinister in this incident and they did not even investigate it. As far as I know, therefore, the mother was not in fact harassed by any further inquiry being made of her. Her ability to look after R was not affected by this referral, and that is an important aspect to bear in mind.
31. The judge's eventual conclusions were:

"It is apparent that I have formed an adverse opinion of father. I appreciate that there have been no more violence or threats. But I am satisfied that he has continued to harass mother by making further unjustified Social Services referrals. Worst of all is that he is so emotionally unstable as to suggest to [R] that he is being physically abused by mother's partner."

32. When the judge came to apply the law to the findings of fact he directed himself in accordance with Re H (Minors) (Access) [1992] 1 FLR 148, asking whether there were cogent reasons why R should be denied the opportunity of contact to father. Above all, R's welfare was the court's paramount consideration. The judge's approach was expressed to be this:

"I have to balance the happiness that [R] obviously has with his father against father's behaviour before and after 27th May 2001. I repeat there is no further violence or threats of violence or visits to home, or work. However, I have found that father continues to harass mother by making false allegations to Social Services, and in particular by putting in the mind of the child the false suggestion that her partner is hitting him, and the other matters that I have recently dealt with ..."

33. He therefore concluded that contact should be terminated.
34. In that weighing or balancing exercise the judge failed to make any critical assessment of the mother. He failed to bear in mind at all her admission to the reporting officer that she was ambivalent about contact. He failed to consider the need for the parents to work through the difficulties that R was presenting to both parents before he resorted to the draconian step of terminating contact. The two unwarranted referrals were not shown to have so deleteriously affected the mother's ability to cope with R and with contact that by themselves they justified that extreme remedy.
35. The judge failed, moreover, to give father any credit for laudable attempts to cope with R's distress. He watched a video presented to him by the father. It was apparently recorded on 20th October 2001, which is in the run up to the November referral, and it highlights the difficulties that the father was beginning to experience on returning R. The video showed R being carried by his father in the hallway, and the boy was clearly unhappy. The words were not apparently readily discernible, but the judge took the father to be reassuring the boy that he, the father, appreciated that he did not want to go back to his mother. The lady who was collecting him was waiting at the door. There was an incident when this lady put two fingers in the air to the father and he reacted by asking why she was doing that, and there must have been some exchange of words. The next clip on the video goes to 6th November, but then comes back to 20th October, in the curious compilation of that tape, and picks up the story four minutes later. By now it was obvious from that recording that R was going willingly out of the house to meet the lady and that he seemed quite happy. So there had, within the space of four minutes, been a transformation from an unhappy boy who needed to be comforted to a child who was going home perfectly happily. The father apparently bent down to R, asking for a kiss and saying, "I love you very much and I am always here for you, okay."
36. The judge made adverse criticism of the father in respect of this. It was something the father regularly did, and the judge said:

"It begs the question that as the child gets older the child is going to be wondering why it is father is saying this. Why is it necessary for father to keep saying this time and time again."

37. At a later point in his judgment, but returning to evidence of that kind, the judge felt that the father found it so difficult to part from his son that he let his feelings overflow, which had the effect of distressing and upsetting R.
38. That is not actually the evidence of what the video depicts. The video shows a distressed child who is not wanting to go home; the father coping with that distress; the child leaving happily; the father telling him that he loved him and would be there waiting for the next contact. That seems to me to have been a most effective way of dealing with the situation and, given the intensity and passion of this father, a wholly proper and appropriate course of conduct. It is beyond criticism. Indeed, it is worthy of praise. The judge, however, is so adverse to the father and has formed such an unfavourable view of him that he does not give credit where credit is due. It is very difficult to see how else the father might have reacted. Had he handed over a screaming child to the lady who came to fetch him he would have been damned for failing to terminate that distress.
39. It seems to me that the judge, with respect to him, and acknowledging fully his close involvement in this case, nonetheless failed to have regard to those matters which do reflect well on the father. There is, for example, the view of the court reporting officer, set out in her August 2001 report, that:

"R's needs do seem to have been met in spite of the problems that have arisen between his parents."

40. The judge does not specifically allude to the court reporting officer's comment on the contact which she observed, and it is important evidence from her. She spoke of being able to observe R with his mother briefly before and after the meeting in her offices where contact between him and his father was to take place. She said that R was:

"... a bright, chatty and lively child who seemed quite at ease on arrival at the office; he knew that his father would be arriving and was happy to be left by his mother with me in our playroom until [the father] came in."

41. Then she said:

"[The father] and [R] spent a boisterous and playful hour together during which [R] made a point of telling me things about his father, for instance that he was fireman and that there was a pond with frogs where [the father] lived. At the end of their time together [R] parted happily from [the father], taking with him a t-shirt, bat and ball that he had been given.

The important thing to draw from that observation is the ease the boy displays with both parents; his ability happily to leave his mother in order to see his father; his free and easy references to his father, which shows the depth of the attachment; and his ability to leave father easily at the end of that contact.

The judge put R's happiness in the balance. It goes much further than happiness. More importantly, and as required by the check-list factors, it is R's need which must be satisfied. This boy had, and still has, a need for contact because the amount of care given to him by his father in the first two years of his life had established an attachment to the father, the severance of which was itself harmful. In the longer term the denial of contact would cause further upset for the boy. It is necessary for the court to look not only to the present consequences of termination, but to the medium term and the long term. This contact was terminated in circumstances which make it very difficult for the father to restore contact.

The judge concluded:

"I would need to have a full psychiatric assessment on father and a psychologist's report on the effect father's conduct has had, and is likely to have, on [R] before I would consider re-instating direct contact."

42. In my judgment the more appropriate time to direct such assessment would have been after making the interim contact in May, pending the review. I have some difficulty in seeing how a psychological report on R, at some undetermined date in the future, there no longer being a date for review, would be helpful as to the effect father's conduct has had on R. The likely effect it will have on him cannot helpfully be judged whilst contact is not taking place.
43. Miss Owen has submitted cogently and very persuasively that this court should be slow to interfere because the judge has uniquely been placed in a position to assess the personalities of the parties, whom he closely observed whilst they were in his court. I am extremely conscious of the limitations of our ability. We do not need to be reminded of G v G, though it is helpful always to look back at it.
44. In my judgment the judge's error here was to leave important aspects, which I have attempted to identify, out of the balance which he was striking. My conclusion is that, because he failed properly to take those matters into account, it is the duty of this court to interfere. I have come to the conclusion, and have the duty to say, that in my judgment the judge came to the wrong conclusion. I am acutely aware that this trespasses upon an area which is ordinarily left to the trial judge, but I am satisfied that this is a decision which should be upset and that the order terminating contact should be discharged.
45. As for parental responsibility, the judge dealt with that in his concluding paragraph, in which he said no more than this:

"As to father's application for parental responsibility, I am satisfied that he would use it to help him interfere more in mother's care of [R], which would only add to her stress and make it less likely that she could properly care for [R]. I dismiss that application also."

46. I am not persuaded that the judge had the proper test in mind which ought to have been applied in the consideration of that part of the case. The mother's solicitor appeared before him. We have not been told that any authority was cited to the judge. Had authority been cited to him he would inevitably have been directed to a well known passage in the judgment of Balcombe LJ in Re H (Illegitimate Children: Father: Parental Rights) [1991] 1 FLR 214. Balcombe LJ suggested that there were three material (though not necessarily exhaustive) tests: (1) the degree of commitment the father has shown towards the child; (2) the degree of attachment which exists between the father and the child; and (3) the reasons of the father for applying for the order. This father would easily establish all three of those criteria.
47. Moreover, as this court has repeatedly held (this time taking a dictum from the judgment of Butler-Sloss LJ in Re H (Parental Responsibility) [1998] 1 FLR 855):

"Parental responsibility is a question of status and is different in concept from the orders which may be made under s.8 in Part II of the Children Act. The grant of the application declares the status of the applicant as the father of that child. It has important implications for a father whose child might for example be the subject of an adoption application or a Hague Convention application."

48. This is a child whose mother is Australian, and so the significance is immediately apparent.
49. Ultimately, of course, the matter is dependent on the welfare of the child; and in some circumstances, as the authorities show, the father can have behaved so irresponsibly as to be denied parental responsibility. But, upon analysis, the facts of each of those cases are very far removed from the facts of this one. Those cases are collected in the judgment of Hirst LJ in Re P (Parental Responsibility) [1998] 2 FLR 96. In one of the cases the father behaved with cruelty and an element of sadism. In the case of Re P [1997] 2 FLR 722, a court of which I was a member, from which the judgment of Lord Woolf MR is quoted, the father was a long serving prisoner. In the case of Re P (Parental Responsibility) itself the father, who had paedophiliac tendencies, remained a risk to his own child, so much so that his contact had to be supervised. Although, therefore, in that case the judgment was upheld where it was thought that the father might abuse the use of the order, in many cases any potential abuse can be cured by the use of prohibitive steps orders and other remedies under section 8 of the Act.
50. Here, I am not satisfied that the judge was directed to these authorities or bore in mind the various factors that ought to have been taken into account in considering parental responsibility, and I am satisfied that this court is entitled to interfere. Here we have a father who played an important part in the life of this young child, certainly during his first two years. Using the words perhaps inaccurately, the parents then had a regime of some shared care for this boy. The father is clearly devoted to him and the boy responds in turn. There are reasons why, since contact has to be restored, in my judgment, this father should be entitled to play the natural role which fatherhood ordains for him by the very fact of his being a father. In my judgment the case is overwhelming that he should be granted parental responsibility.
51. I add by way of parenthesis (more to assure the mother than being a reason in forming my judgment) that, if the amendment to the law proposed at the moment in the Adoption Bill goes through, a father like this one would expect ordinarily to receive parental responsibility automatically by virtue of the registration of the birth in his name.
52. What, then, is the result? In my judgment he should be granted not only parental responsibility, but some contact in the meantime.
53. An issue arose during the course of this hearing about the mother's wish to visit her family in Australia for an extended holiday from October over Christmas into January. The matter is not technically before us, but, with the consent of the parties and to save further expense, I would be prepared to give permission to the mother to take R out of the jurisdiction for the purpose of that holiday during the stated periods, upon her undertaking to return him to the jurisdiction at the end of the holiday or when called upon by the court to do so. The father gives his consent to that holiday, and the order should be marked "by consent" if it is to be made at all.
54. In the meanwhile, in my judgment, some contact should be restored as soon as it can be arranged. I would propose that between now and the mother going on holiday there should be two short periods of contact, the first to be arranged as soon as practicable by the children and family reporter, Mrs Edwards, who supervised the last contact. That contact should be on two occasions for two hours, to be arranged by the children officer and supervised by her to the extent that she considers supervision to be necessary. I would expect that the relationship of father and son is strong enough for him to be able to have a longer period of contact, for a day, shortly before the mother goes on holiday in October later this year. Those are dates to be arranged.
55. Meanwhile, the matter should go back to the Liverpool County Court for further directions. It will be for the court to consider whether or not these parties feel they would benefit from some intervention from Dr Barnardo's. It is not a matter I would seek to impose at this stage. It needs further consideration and, above all, it needs co-operation for that intervention to prove of any help at all. In my judgment, these parents each have significant difficulties in their respective personalities which would make that help extremely useful and I would encourage it, but I leave that to the Liverpool County Court.
56. His Honour Judge Lynch will, I hope, accept with fortitude and not as a criticism of him the view inevitably to be formed after an appeal like this that perhaps it would be better if he withdrew from the case and left it to one of the other designated judges in Liverpool. I have no great criticism of the judge. I recognise this to be an extremely difficult case. It has certainly caused me a great deal of anxiety.
57. I would allow the appeal and make those orders accordingly.
58. LORD JUSTICE CLARKE: I agree.
59. SIR MARTIN NOURSE: I also agree with the judgment of Lord Justice Ward and the order proposed by him.
60. Expressed in a nutshell, my central concern is that, while the judge recognised that there had been no repetition of acts or threats of violence between May 2001 and March 2002, he drew from the four referrals the inference that the father had intended to harass the mother and had harassed her to an extent which was likely to have interfered with her ability properly to care for their son. In my view the referrals were at least equally consistent with the inference that they came about because of the father's extreme, perhaps obsessive, concern for the boy's well-being. The judge does not seem to have given adequate consideration to that possibility and on that ground, if on no other, I think that this court is bound to regard his decision to take the drastic step of cutting off direct contact altogether as being unsound and liable to review.
Order: appeal allowed and order terminating contact discharged; counsel to lodge an agreed minute of order and directions.