Lord Justice McFarlane has allowed a father’s appeal against a ruling made last year limiting him to email contact with his daughter, along with Christmas and birthday presents.
The father’s application for contact or residence will now return to the courts for another hearing.
In A (A Child), the Lord Justice identified “deficits” in the judgement, saying Judge Goldsack had not properly analysed the amount of weight to be given to the views of the man’s now 13 year-old daughter, called ‘M’ in case reports.
She had claimed to be opposed to further contact with her father. In his ruling, the Lord Justice McFarlane noted:
“The judge concluded that, at the age of 13 years, M’s wishes could not and should not be overridden. The father’s case is that the judge should not have accepted M’s recent utterances as being a true indication of her wishes and feelings, given her apparent willingness to contemplate further contact only some six months prior to the final judgment and he asserts that the court should not abdicate its responsibility to make orders that afford paramount consideration to M’s welfare when the child would plainly benefit from having a full and ordinary relationship with her father.”
The ruling is the latest stage in a parenting dispute between the parents which dates back more than a decade. The Court of Appeal judgement sets the scene:
“M’s mother [“the mother”] is now aged 48 years and her father [“the father”] is aged 60. M’s parents separated in May 2001 when M was only some 21 months old and the first application for contact was made by the father five months later in October 2001. The litigation concerning M between the parents has continued, almost without interruption, for the ensuing twelve years. Since 2006 alone there have been no fewer than eighty-two court orders. At least seven judges have been involved in the case at one stage or another and over ten CAFCASS officers have played a part, initially as report writers and, latterly, as M’s children’s guardian.”
The judge expressed sympathy for the father:
“This is “an unimpeachable father” against whom no adverse findings of fact have been made at any stage in this process and whose demeanour before this court, as it was apparently before [Judge] Goldsack, was dignified and measured despite the enormous frustration and anger that he must feel. So far as the mother is concerned [Judge] Goldsack held that he had “no doubt that ….mother has always been implacably opposed to contact” to the father and to the extended paternal family. In relation to M the judge was equally plain: “the evidence is clear that whenever M has contact with father it is positive and that M does love her father.”
Lord Justice McFarlane went to conclude that the complex and highly lengthy case had violated the rights of both M and her father under Article 8 of the European Convention on Human Rights, which governs the right to respect for “private and family life”.
“I can only conclude, as I have stated, that collectively the combined interventions of the court over this very extended period have, from a procedural perspective, failed to afford due consideration to the Art[icle] 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.”