Lord Justice McFarlane expressed profound concern that there was a four year delay between a father’s application for contact with his son and a final hearing.
The case was an appeal against a decision that a father should only have indirect contact with his 11 year old son. The facts of this case were complicated, but not uncommon to a family law solicitor or barrister. The father and mother separated when their child was young. The father initially had a good relationship with his son, confirmed in Cafcass Reports, and continued to see his son for a year. The mother was reported as having anxiety and depression especially concerning anything to do with the father. Following an allegation regarding the father, the mother stopped contact, and the father made an application in 2007, but later withdrew this application, he says because he did not want to cause the mother any further distress.
The father issued a new application in 2010, and the final hearing took place in September 2014, a staggering four years later. A Guardian had been appointed on behalf of the child and psychological report had been prepared on both parents and the child. The psychologist and guardian recommended no contact, as they did not feel that the child was resilient enough. The lower court Judge therefore made an order for no direct contact.
The father appealed, saying that this was a case of ‘implacable hostility’.
Lord Justice McFarlane concluded ‘the problem in this case is not (the child’s) problem, it is an adult problem, It is neither fair not helpful… to put the responsibility on (the child) of identifying at some future date a wish to re-open contact with his father…These adults need to face up to their responsibilities, and it is primarily the Mother’s responsibility because she is holding up progress, and this adult problem needs, if possible, to be addressed by the adults supported if necessary by psychological support for all concerned’.
He did not however feel that, in the circumstances, he could criticise the Judge for making his decision, or find that he was wrong. He said ‘That this should be the outcome of this case is, in my view, a tragedy,. It is certainly a tragedy for the Father, but more importantly it is tragedy for this young man, who had a warm, easy and close relationship with his father when he was much younger before their separation took place.’
...it is necessary to express profound concern as to the very slow and delayed progress of the Father's application. The very fact that it only came on for determination before the judge in September 2014, nearly four years later, speaks for itself....no substantive directions were made for a whole year...the report of a psychologist was not achieved until nearly two years later.
We are told there were difficulties with the legal aid and with the identification of a psychologist... But even allowing for those sorts of difficulties, a period measured in 18 months or so to obtain intervention of this sort is just simply unacceptable. It is not unacceptable in an arid, technical way, but it is wholly unacceptable for this boy, who carried on growing up in circumstances where he was not seeing his father.