Case No:  BH06P0051
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BOURNEMOUTH DISTRICT REGISTRY
Date: 6th November 2009
Before:
HIS HONOUR JUDGE BOND
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In re R (A Child) 
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JUDGMENT.

1.	This is a further hearing which concerns the future of R.  His father is I.  His mother is J.  R was born on 31st May 1998.  R lives with his mother.  The father has remarried and thereby acquired a step family.  The mother has not remarried.
2.	Each of the parents has recently lost a close relative.  
3.	At this hearing the mother has been represented by Miss H of Counsel.  The father has appeared in person.  The Guardian has been represented by Miss G of Counsel.
4.	The issue which I am asked to decide is whether the father and his wife, S should have a joint residence order in respect of R.  He lives with his mother and has done so all his life.  However the father seeks a transfer of residence because it is said that the mother has prevented R from having proper contact with his father.  It is said that the mother has alienated R from his father.  The mother denies that.  She agrees that there should be an order for Shared Residence between herself and the father upon the basis that R’s main home continues to be with his mother.
5.	The father is supported in his application by Dr. M, a child and adolescent psychiatrist, who has been instructed by the Guardian.  The Guardian has adopted the advice of Dr. M. 
6.	The application is opposed by the mother.  It is agreed that, at least in the short term, R will be very upset if the court makes the order which the father seeks.
7.	R moved School in September.  He now attends L School.  Some of his existing friends moved at the same time.  If he lives with his father, I am told by the father, and accept, that a place will be available at a suitable local school. 
8.	The present arrangement is that R is supposed to have alternate weekend staying contact with his father and to have staying contact in the school holidays.
9.	The mother wants the current regime to continue.  The father and the Guardian maintain that because of the mother’s attitude to contact, R, who does generally but reluctantly attend for contact, is being put under damaging emotional pressure and that this amounts to significant harm as defined in the Children Act.  In the considered view of the father the situation is now so harmful to R’s emotional development that the court has to decide either to transfer residence or discharge the existing order for contact.  The result of the latter course would be that R has no contact with his father. 
10.	In her report the guardian suggested that there might be third way by which contact was reduced so that R stayed for one weekend a month with his father.  The father does not support that.  He is of the view that it is likely to be as difficult and harmful as the present arrangement. By the close of the evidence the guardian was also of the opinion that her suggested third way would not be successful.   
11.	For a review of the earlier history of this case reference should be made to my judgment dated 15th April 2008 (A 47) which should be read together with this judgment.
12.	The judgment dated 15th April 2008 was formally handed down on 1st May 2008.  On that day an order was made (B31) which set up a regime of contact which lasted to the date of a Review hearing on 25th June (B 36).  A further order was made on 8th July 2008 (B 37) under which arrangements were made for contact up to 24th August 2008.  Further arrangements were made by way of an order dated 29th August 2008.  This provided for the situation up to a further Review hearing which was fixed for 16th October. 
13.	By the time of the hearing on 16th October and because of what the father felt was the mother’s unhelpful attitude, the father applied for a shared residence order (between himself and the mother) in respect of R.  Further provision was made for contact up to the end of January 2009. 
14.	A further order was made on 30th January 2009.  By this time the father had decided to apply for residence to be transferred to him.  Although she had in a statement dated 13th January opposed an order for Shared Residence, the mother at the hearing on 30th January conceded a shared residence order between herself and the father on the basis of the schedule of contact which was attached to the order.  
15.	The matter was set down for a hearing starting on 20th July with a time estimate of 3 days.  Because of the presence of other cases in the list the case was adjourned part heard to 30th July in order to hear the guardian’s evidence.  On 30th July the mother was ill and unable to attend court.  I was urged on behalf of the father to allow the hearing to proceed in the mother’s absence.  I decided that was not a fair approach in the circumstances and therefore the case was further put over to 18th September 2009.  On that day I heard the guardian’s evidence and adjourned to await the written submissions of the parties.  The submissions arrived while I was away and I did not see them until 15th October.  In her submissions on behalf of the mother, Miss H suggested that the court should now also hear evidence from Mr. B.  He had been invited by the Guardian in her absence on holiday to be a “critical friend” to R and has written a letter to the court dated 16th September.  When I became aware of this, and although no formal application had been made to call Mr. B, I arranged for the Court to contact the other parties and inquire as to their attitude to the suggestion that Mr. B should give oral evidence so late in the case.  The father and the guardian wrote in opposition to the idea.  I gave a written indication that I was minded to refuse to allow this evidence but would hear submissions if those who act for the mother wished to pursue it.  On 30th October 2009 an application was issued on behalf of the mother.  It was served on the other parties on 2nd November.   
16.	Evidence:  I have read the trial bundle.  I also heard oral evidence from Dr. M, the mother and witnesses on her behalf.  I read the statements of other witnesses who were to be called on behalf of the mother but who could not attend because of illness.  I heard from the father and his wife S. I also heard from the Guardian.  I have seen a large number of photographs of R which show him apparently enjoying himself when with members of either side of his family and their friends.  At the adjourned hearing I was provided with a report from Professor C, a Consultant Orthopaedic Surgeon.  This report was arranged by the Guardian’s solicitor because it was said by the mother that R had a serious problem with his feet and therefore would not be able to cope with the walking holiday in Slovenia that the father had arranged.  I find the mother’s attitude about this as curious as she agrees that generally R is a physically active boy.  R did not join the walking holiday.  There was no physical reason for this.  It appeared that the mother had arranged for R to be treated by a Podiatrist.  The Professor found that R has flat feet but that the condition was not serious.   I have also seen the father’s recent diaries which contain his observations about R’s contact visits.  I have also been supplied with a DVD of some of the contact.  I have tried unsuccessfully to view this on three different machines.   
17.	Events since May 2008:  following the order of 1st May 2008, I agreed to see R in the presence of the Guardian and a representative of the Guardian’s solicitor.  The purpose was for me briefly to tell R that I had decided that R should see his father and why I had decided that he should do so.  In her statement at C 161 the mother sets out her description of what occurred.   When he first came into my room with the guardian R was crying quietly.  When I told him of my decision he became extremely upset.  He ran away crying loudly but later returned with his mother.  He remained upset but I also later observed a measure of anger and defiance.  There were considerable difficulties in respect of the first contact visit after 2nd May 2008. The first contact took place over the weekend of 11th – 13th July.  The father has set out his description of what occurred at C 196/202.   The father felt that considering that this was the first time that he and R had met for about six years, the weekend was successful.  At C208 is a document which contains the father’s general observations of R’s behaviour when with his father.  At paragraph 24 on page C211 the father says:  “Overall. R’s behaviour with us becomes more normal as time progresses; the positive change in him is mainly incremental but seems inevitable with each visit.  Although he has not always enjoyed himself, R has mainly enjoyed himself in my care.  Sadly he cannot admit his enjoyment”.   
18.	  The father complains of the mother’s attitude and behaviour at Handovers.  He says:  “It is also disappointing to see that J welcomes R back into her arms at return as though he had had a traumatic experience rather than a super time with his dad.”   I accept that evidence.  This attitude of the mother is a crucial aspect of this case.
19.	Between 18th July and 1st August 2008 R stayed with his father.  From C218 is an account of that visit which included a holiday with the father, his wife, S, and her three children aged 18, 15 and 14.  The father recounted an incident which occurred on 23rd July after the family had arrived in France.  After a telephone conversation with the mother R was upset and refused to leave his room to join the family at supper.  The father eventually carried him out of his room.  It is reported that shortly thereafter R cheered up and played with the others.  This episode is still dwelt upon unfavourably by R.
20.	My impression from the father’s detailed notes of contact up to 19th September 2008 is that R generally enjoyed himself while with his father but he is not able to admit that.  On 30th August (C218) there was difficulty from the moment that R was collected from the home of his maternal aunt in C.  The father says that the mother’s behaviour on that occasion (and on others such as 12th September) is such that R is bound to understand that his mother does not approve of the father or of R having contact with him.
21.	In her statement dated 18th September at C224 the mother explained how shocked she has been at the course of events.  She denied in paragraph 6 that she is implacably hostile to the notion that R should have contact with his father.  She denied behaving at Handovers in the manner complained of by the father.  At C228 the mother set out her general proposals for contact and exhibited a proposed schedule.  
22.	At C 236 the father set out his summary of the position as at 28th September: R is generally described as enthusiastic, polite, engaging, chatty and fun when he chooses.  However he is said to be wary with his father with whom he does not interact normally unless other children are present.  At paragraph 1.5 the father said:  “Disappointingly, R cannot admit to any happiness or enjoyment in being in my company.  He can hardly bring himself to acknowledge any positive about contact.  His expressed views of being with me are often entirely negative and irrational.  They defy the reality of what I and my family have witnessed”.  
23.	In paragraph 4.6 the father maintained that the mother’s approach and as exemplified by the nature of her proposals for contact produce a destructive cycle of which R is the victim.  
24.	In his statement of 12th January 2009 the father at C243 reported that contact for R had become an increasingly positive experience.  He had become more confident with his father and less guarded in what he discussed with him.  The father reported occasions when R showed emotional upset.  The father complained at C244 about what he saw as the mother’s continued unhelpful behaviour at handovers. The progress that had been made in relation to contact the father maintained was in spite of what he saw then and still feels are the mother’s attempts to undermine it.  
25.	Notwithstanding her later agreement to a shared residence order in her statement of 13th January 2009 the mother opposed the father’s application for such an order.  She complained of what she described as the father’s heavy handed approach.  She showed in my judgment an inability to separate in her mind her unhappiness at what she sees as the father’s  poor treatment of her as a wife and her responsibility to consider R’s welfare and in particular the general principle that he should be able to maintain a relationship with his paternal family.    She maintained that an order for shared residence would have a devastating impact upon R.  She went on to say in what seems to me to found the basis of the mother’s approach to this case : “R and I will be back to the desperate years when I had no choice but to submit to the applicant’s ever demanding threats.  I have always tried to protect R from witnessing the aggressive bullying and dominance of his father”.  Later the mother asserted that such an order would hand the father “an open door to once again control and bully” her which would be highly damaging for R.  In paragraph 15 the mother said that the existing arrangements were already unbearable for R.  It was said that to impose a shared residence order on a child that was already suffering significant distress would cause a level of distress and strain that he should not be expected to deal with. 
26.	 In his statement of February 2009 (C285) the father sets out four main reasons for making his application.  It is said that such an order will mitigate the harm already caused to R and prevent the perpetuation of that harm.  Secondly such an arrangement will allow R to receive love and support from both parents and to move comfortably between the two homes.  Thirdly it is said that R will lead a richer and fuller life.  Fourthly a change of residence will result in a reduction in the legal process and its involvement with the family.
27.	In the second part of his statement starting at C290 the father set out his proposals in further detail.  He agreed that such a move will be a significant emotional upheaval for R.  The handover if it is to take place should be made quickly. Thereafter as soon as possible the mother’s contact should include staying contact on alternate weekends, half of the holidays and an alternating arrangement as to the festivals. 
28.	R is to receive support from his father and S who works 8 days a fortnight with two half days and one full day off per week.  S, who fully supports the father’s application, also employs a nanny who has been with the family for 13 years. It is the opinion of the father, S and Dr. M that R will soon adjust and gain substantial long term benefits to his emotional development once the move has been made.  I agree. 
29.	In her report the guardian makes the point that the father should be on hand and available for R in the period of the proposed change over and thereafter.  In September the father moved to his current job.  This will involve a drive of one and a half hours each way.  Consequently the father will spend up to two or three nights a week away from home.
30.	In her statement of 12th June the mother pointed out that R has had contact with his father for the previous 11 months and has found the changes in his life hard to accept and reconcile.   The mother says that she has given her unconditional support and encouragement to the development of R’s relationship with his father.  The mother describes a picture of a happy, busy and fulfilled life which R enjoys at his mother’s home.  The mother fears that if R is forced permanently to change his home he will be deprived of the basic child’s need to show and receive affection and beneficial physical contact.  The mother also predicts that if the father gains a residence order such progress as has been made in fostering his relationship with his father will be lost. She fears that R will refuse to return to his father after contact with her and that this will lead to further litigation.
31.	In his final statement dated 16th July 2009 the father recounts the recent progress of contact.  It is said that R’s behaviour during contact has been much the same although the progress in his improving relationship with his father had slowed since Christmas.  The longer the period of contact the more relaxed does R become.  In paragraph 4.0 the father describes the difficulties at Handovers.  In paragraph 5.0 the father set out what he calls the Contact Successes and describes some of the happy activities that they have enjoyed together.
32.	 The father concludes his statement by observing that in his opinion the position has not fundamentally changed since R was aged 4. He has a relationship with his father but does not feel that he can be seen to enjoy it although he appears happy for most of the time that he is with his father.  The father has adopted Dr. M’s opinion:  “If R remains living with his mother, I see no prospect of R being able to fully establish and enjoy his relationship and his family life with his father and paternal family”. 
33.	The oral evidence:  The first witness was Dr. M.  He is a consultant child and adolescent forensic psychiatrist.   His most recent reports in this case are dated 19th January, 29th January 2009 and 28th June 2009.  In his report of 19th January Dr M concluded that shared residence would not be a feasible option. An alternative course is to accept that direct contact should cease on the basis that the mother does not positively promote it.  What has been described as “life line” contact (that is staying contact once a month) would do no more than keep the father as some form of presence in R's life.  The current damaging level stress is likely to continue.  The doctor recommended a change of residence to the father.  In his report of 29th January the doctor described his visit to the father's home on the morning of Sunday 25th January.  R was visiting his father's home that weekend.  The doctor observed that R was an integrated family member and appeared to have and to accept a degree of permanence in his relationship with his father.
34.	He is aware that R says that he does not want contact to continue and will be strongly opposed to a change of residence.  Although R expresses a clear view, the doctor does not think that R has the capacity to make an informed decision.  He is under great emotional pressure and unable to balance the various considerations. I agree. 
35.	In his oral evidence the Doctor said that from a psychiatric point of view R is normal but is under considerable stress as a result of the present situation.  Having given the matter considerable thought he confirmed his view that R should live with his father.  The doctor had come to this opinion at the beginning of this year.    While direct contact had started, it was occurring in such a way that a damaging level of stress continued and R still holds a negative attitude to the paternal family.  R continues to reject his father in a way that is highly abnormal.  There is nothing inherent in either the father or the paternal family which would support such a rejection.  I agree.   The recommended change of residence would, in the opinion of the doctor, provide R with the chance to acquire a balanced view of his father.  Occasional contact will not allow R psychologically to do that.  
36.	R and his father were described by the doctor as being physically close when engaged in an activity and there was laughter and happiness.  Dr. M "saw a little boy with a big physical Dad".  It was normal.  He was not frightened of his father. Indeed R was on occasion quite assertive.   In the doctor's opinion the evidence of what he saw belies the assertion by R that he wants contact to stop.  The result of the present situation is that R lives his life in two compartments.  These have been created by his knowledge that he is not permitted to have a good time with his father.   This situation is against the long term welfare of the R.  The doctor regards this as significant harm.  In itself it is not a major trauma, but the long term build up of a false belief system about the father and his family is very damaging.   He thought that the father and S would properly promote R's contact with his mother.  The doctor thought that given the love and commitment shown to R by the father and his family, R would quickly accommodate the change in his life although the move will cause an emotional trauma in the short term by which the doctor meant days or weeks. 

37.	If R were to live with his father he should have alternate week end staying contact with his mother and longer contact during the holidays.  If there is to be a change of residence it should be done as quickly as possible and R should be told of such a decision by the judge or the Guardian.  It is in R's interest to understand that this information is coming from the court and not from his parents.

38.	When asked questions on behalf of the mother the doctor agreed that the mother has complied with the order about contact but she has not provided the psychological and emotional support that R needs in order to enjoy his time with his father.   It was put to the doctor that the mother's most recent statement showed a significant shift in attitude.  The doctor did not agree.  He accepted that there is a change but it had more to do with presenting the mother in a positive light to the court.  I agree with that.

39.	The doctor was asked about the incident which had occurred in France in the summer of 2008.  He was surprised that this remains an issue and given the father's description of it the doctor saw nothing wrong.  Indeed the doctor said that he might have done the same thing himself in similar circumstances.

40.	When contact started again a difficulty concerned the use by R of his mobile phone to call his mother when staying with his father.  In principle the doctor agreed that there is nothing wrong with such a practice.  However it seemed that R felt that he had to hide from his father the fact that he had his phone and the mother had not told the father that R would bring his mobile.   

41.	The doctor’s evidence was powerful.  He agreed that in his experience it is unusual to recommend a change of residence.  While I accept the doctor’s analysis  and his expertise, I have to come to a conclusion that is based upon a consideration of all the evidence in the case.  Miss H in her closing submissions suggests hat Dr. M is too dogmatic and that it is dangerous for the court to rely upon his opinion in this case.  

42.	 The next witness was S.  Her statement is at C297.  She married the father in 2003.  She separated from her first husband when her children were aged 4, 3, and 1.  They continue to see their father regularly.  S, her former husband and R’s father are all on good terms.  There were difficulties for a time when her middle child did not want to see his father but S ensured that he did and the difficulties were overcome.  It was a difficult time.  S fully supports the father’s application for residence.  In fact she sees considerable advantages in an order which grants joint residence to her and the father.  

43.	 S is of the same view as the father.  The contact which has taken place has not been properly supported by the mother.  In spite of the good progress that was being made in 2008, S thought that the position has regressed since February 2009.  R has become reluctant to talk about his life.  At times he refers to his father pointing at him or referring to the father as “him”.  He withdraws from family games and says that he wants it all to stop.  S told me that the present arrangement is not sustainable in the long term.  It is too stressful for everybody concerned.  It was put to S that given her job, the father’s new posting and the possible arrival of R in a distressed state, she was taking on too much. S clearly appreciated the potential difficulties.  She is clearly a strong and capable person.  

44.	When asked questions on behalf of the guardian S referred to a conversation with R that had occurred during the return journey from a sailing holiday.  There was talk of when R would next be visiting his father.  I was told and accept that R looked horrified and said that he thought that no more contact had been arranged.  When told that was not so he started to cry. 

45.	I was impressed by S.  She has given a great deal of thought to the implications of a possible move by R.  I have no doubt that she can be firm but also sensitive and caring.   Although critical of the mother’s conduct as to contact, I did not find S to be hostile to the mother.  

46.	The father gave evidence.  He told me that he regards a change of residence as essential for R’s emotional well being.  If R continues to live with his mother the father believes that the present alienation of R from his father will continue.  With the benefit of hindsight the father felt that the court should have followed Dr. M’s recommendation of 2008 when he suggested a temporary change of residence. Neither the present regime nor one which provides for a reduced level of contact will be successful.  In the absence of a change of residence the father believes that contact will eventually cease in any event.  It is therefore preferable from R’s point of view that either he lives with his father or all direct contact ceases now. 

47.	The father described how R does now acknowledge him as a relative although he shows some resentment at the father’s involvement in his life.  He generally cries for a short time on collection and return.  He settles and enjoys himself more easily during longer periods of contact.  I was not surprised to hear that.  As an example of the mother’s actions which tend to prevent R from settling at the father’s home and therefore undermine the contact, is the practice of sending him with food, water, a pillow, a blanket and a cup for his tooth brush.   I agree that these actions of the mother do not help R to settle in his father’s home. 

48.	Another example revolves around the events of the weekend of 27th February 2009.  That was a weekend when R was due to be collected by his father from school and to visit for the weekend.  The father accepts that he failed to collect R.  This was because he had mistakenly failed to put the date into a new diary. The mother has now agreed that this was a genuine mistake.   The father apologised.   The mother was contacted by the school, collected R and took him to her home.  The father knew nothing of this until he received an unpleasant letter from the mother’s solicitors on or about 2nd March.   I think the letter was ill judged and unhelpful.  As the father pointed out, it only needed the mother to call the father on the Friday afternoon and he would have been able to collect R.  Instead of that she caused her solicitors to send the letter to which I have referred.   The mother told me that she decided to retain R because he was upset and agitated and did not want to put him through what she described as another session of stress.  I agree with the father and accept his evidence about this episode and in particular his description of the telephone conversation that he had with the mother.  I think that the mother did not behave responsibly in relation to this incident and her actions on this occasion provide another glimpse of the mother’s real feelings.  
49.	The father was asked about his new posting.  He does not have set hours but will arrange his time to complete his work as required.  He envisages that he will be away from home from Monday morning until Wednesday evening and from Thursday morning until Friday evening.  If necessary he told me that he could commute each day.  I doubt that this could be sustained for very long.   It might be possible to work at home on Wednesdays.  There will be times when the father will be at home when S is at work.  On some occasions the Nanny will be in sole charge.
50.	The father told me that he had agreed to join in the attempt which had been made by the guardian and Dr. M to mediate between the parents.  The mother had not wished to continue after the first session as she felt that she was not being attended to. The mother had asked the father to attend at S Mediation.  He had declined that invitation.  He saw little prospect of success as he felt that the mother had shown herself to be too highly defended and unwilling to engage with Dr. M’s process.  
51.	The father as at the previous hearings, conducted his case with skill and determination.  Unsurprisingly he showed some weariness with the process.  I think that, based upon the experience of the last year, he genuinely feels that everyone is faced with a stark choice and that there is no middle way.  I accept that he has done a great deal of good in the way in which he, S and her children have tried to make the contact enjoyable and beneficial for R.
52.	I heard from a number of witnesses who were called on behalf of the mother.  I do not think that any of them had met the father before seeing him at this hearing.  They all testified to the effect that R appeared to them to be a happy, active and sociable boy.  I have no reason to doubt that.  Each witness saw the case entirely from the mother’s stand point.
53.	One of the witnesses, Mr. T has a son, A, who is a friend of R.  R has told A that he hates is father and does not want to see him.  The father asked that if R were to live with his father whether Mr. T would be prepared to establish a rapport with the father so that arrangements might be made for A to visit R at the father’s home.  I was surprised and worried when Mr. T replied to the effect that he could see no circumstances in which he would have a rapport with the father. 
54.	I heard from the mother.  Her recent statements are at C224, C278 and C302.  Her suggested schedule of contact is at C232.  She told me that since the last hearing she has been attended a course of counselling.  This has helped her to deal with the difficulties of the present situation.   The mother came across as more controlled and less emotional than at previous hearings. She presented as more reasonable but I have no doubt that she still has feelings of antipathy towards the father.    
55.	The mother told me that the father’s attitude to her at Handovers is abrupt and confrontational.  I think that it is probably the case that the father feels it wiser to say as little as possible at the handovers.  This may appear as abrupt.   In contrast to her position in early January, the mother no longer takes the view that a shared residence order would provide the father with a means to control her.  She denied alienating R from his father.  She told me of various means by which she has tried to present the father to R in a favourable light. 
56.	The mother told me that the start of staying contact had been “very very” difficult.  For example he had returned in tears from France and the period between July and December 2008 had also been upsetting for R.  He had said that he was afraid that he might not return home from contact   Generally R likes to spend time at home.  A change of residence would be one thing too much.  The mother feared that a change in residence would cause R permanently to reject the paternal family and to become suspicious of his mother.  The result, according to the mother, is that R would become helpless, lonely, isolated and generally unable to manage.  Those are important considerations and I bear them in mind.  Another matter upon which the mother relies is the observation of the guardian at D193 paragraph 46 to the effect that if R is to move, the father should be on hand to manage the transition.  In view of the father’s posting, that appears to be difficult to arrange.   A further point is that, given the adjournment of the matter from 30th July to 18th September, R has started the academic year at the new school which the mother had chosen. 
57.	 If R were to remain with the mother, and the only option for contact is a weekend visit once per month, R had told his mother could “manage” that as he would have had an input into the amount and timing of the contact.
58.	One issue that has caused difficulty is the use by R of his mobile phone when visiting his father.  While I see no difficulty in principle in R in having such a phone when with his father, I agree with the father and Dr. M that it was wrong for R to feel that he had to conceal the fact from his father.   I do not think that the mother behaved responsibly about this.  It was put to the mother that she had not, as she claimed, opened and shown to R cards that the father had sent.  The mother had put them at some point into a scrap book but they still appeared to be sealed.  The mother said that the cards had re-sealed themselves because they were pressed together in the book.  I saw such a book but it was not possible to determine whether or not they had ever been opened.
59.	As part of the general allegation that the mother had not properly encouraged contact, it was put to the mother that she had sabotaged part of R’s planned visit to his father over Christmas 2008. The mother contended that R was suffering from the noro virus.  The father said that when R arrived some 3 or 4 days late, he showed no sign of having been ill.  I accept the mother’s assertion that R was ill on this occasion although I note the father’s point that the mother must have known that her suggestion of a collection on 30th December was impossible. .  Another indication of the difficulties in this case is the episode of R’s passport.  The father pointed out that the father’s name and address had been scribbled out apparently by R.  The mother told me that she supposed this had happened when the passport had been left on the kitchen table after R had returned from France.  The mother denied that she had crossed out the father’s name.  She told me that she had inserted a sticky label on which was written the father’s address.  I think it probable that R did obliterate the father’s address after he had returned from France.  Such an action seems to me to be consistent with his alienation, as I find, from his father.  
60.	Generally the mother denied doing (or failing to do) all that is reasonably required of her to assist R with the development of this relationship with his father.  
61.	Having seen the mother again in the witness box I was struck by the difference in her manner on this occasion.  She was apparently more reasonable but I was left with the impression that she had become more skilled at dealing with process of litigation rather than revealing a genuine change in her attitude to the father and the issue of R’s contact.
62.	
The guardian gave evidence on Friday 18th September.  The case was allocated to her in December 2006.  She has produced nine reports, the most recent being at pages D182 and D196.  She last saw R in July 2009.  The guardian’s recommendation is that there should a joint residence order to the father and S.  Depending upon how the transfer works and the mother’s reaction to it, R should see his mother on alternate weekends and for half the school holidays.  If residence remains with the mother, there should be no contact with the father.  This is because it is the guardian’s opinion that to try to enforce contact in that situation will place damaging pressure upon R since in the guardian’s view and looking at the history contact will not take place if R remains with his mother.   The guardian pointed out that he was supposed to have alternate weekends with his father and half of the school holidays.  In fact during the summer he had had considerably less than that.  The guardian could see no good reason which prevented R from joining the walking holiday that the father had arranged.  I agree.
  
63.	The guardian has seen no improvement in the position as it was considered by those professionals who were dealing with the case in the earlier proceedings.  It was then noted that the mother was intensely hostile to the father.  In her own experience of the mother, the guardian had seen no shift in the mother’s attitude.  In the guardian’s view the mother is still incapable of separating difficulties between herself and the father from the needs of R. For example when the guardian tried to talk with the mother about the possible benefits to R of contact with reference to photographs, the mother was unable to engage and talk about the issue.  In December 2008 a meeting was arranged which was attended by the parents, the guardian and Dr. M.  The intention was to see if the parents might work together.  I am told by the guardian and accept that once again the mother was very critical of the father.  The mother told me that she felt intimated at that meeting and was unable to state her view.  The guardian told me that the mother was in fact quite vocal and able to express herself.  On this issue I prefer the evidence of the guardian.
64.	   The guardian felt that it was always unlikely that the order of 18th March 2004 which provided for the mother to encourage indirect contact with the father would work.  Since it was the poor state of the parents’ relationship which had caused the contact to stop, indirect contact was unlikely take place.    It was too much in the circumstances to expect R to express a wish to see his father given the mother’s hostility.  The guardian thought that the order of 2004 represented a missed opportunity for R to achieve a healthy relationship with his father and for 6 years lost contact with his father.  She regarded this as a serious gap in R’s life.
The guardian told me that by January 2009 it was clear that to her that a scheme of shared care for R was not going to be successful.  She met R at school. She found that his hostile view of the paternal family had become more entrenched and extreme since they had met at the beginning of this set of proceedings.  At that stage he had agreed with the guardian that his expressed reasons for not seeing his father did not make sense.  He had agreed that he and the guardian should meet again and together look at photographs of earlier times with his father.  When the guardian met R again at home as planned some three weeks later he refused to look at photographs or cards that his father had sent.
65.	The guardian had considered the question of whether, given his age and apparent strength of feeling, R should be given the opportunity to instruct his own solicitor. This question had also been considered by Dr. M.  Both took the view that he is unable to take a sufficiently objective view of the issues and it would be expecting too much of him. 
66.	The guardian agreed that she had put forward the idea of what was described as “lifeline contact” as a possible option if the father was not given residence.  By this was meant something like a weekend to his father visit once a month.  The guardian no longer advocates that.  She saw no point in such an order as in her view the contact provided for would not take place.  It is the guardian’s view that in reality the mother does not believe that contact is in R’s interests.  The guardian was also worried by the way in which the mother dealt with the occasion in February when the father failed to collect R. I share the guardian’s concern about that episode.
67.	The guardian agreed that the change of residence would involve a major upheaval for R.  His mother has been in a position to give him her full attention.  He will be distressed and angry although when the guardian told him what her recommendation was to be she had expected a much more serious reaction from him.  He said that does not want to live with his father and wants contact to stop.  The father and his new family, who have a very different style of parenting, will have a difficult situation to deal with.  Further another change of school is less than desirable. On the other hand the guardian pointed out that R is robust, intelligent and adaptable.  She did not regard him as fragile.  She described how before R was aware that the guardian was at the father’s home, she heard what she described as a normal interaction between R, his father and S.  He was able to interrupt and to contradict. His demeanour changed when he saw the guardian.    The guardian put the balance in favour of the move given her view that without it R will not have the chance to develop a proper relationship with his father.  The guardian and Dr. M both took the view that the father and Ss would make sure that contact between R and his mother did continue.  Whatever the court’s decision the guardian emphasised that R, who has had enough, needs to know that the litigation is ended.  The parents also need to learn to manage without the court’s involvement and therefore a restriction under section 91(14) Children Act should be imposed.
68.	 The guardian’s evidence was clear.  She does not regard this as a case in which the decision is finely balanced.  I do not share that view.  I think that the balance is a fine one.
69.	Following further submissions I agreed to at Miss H’s request to hear oral evidence from Mr. B on 6th November.  He has not seen any of he case papers.  He has been employed by S since 2004.  That is an organisation which gives help and support to children whose families have suffered domestic abuse. Although he has no formal qualifications Mr. B clearly has considerable experience in helping young people.  He has been awarded an MBE for his work.
70.	His involvement in this case arose following a joint referral in February 2009 by the mother and the Headmaster of R’s former school. At about that time Mr. B had a fairly lengthy conversation with the mother who told him that she had been the subject verbal and emotional abuse by the father.  The concern was to the effect that R’s views were not being listened to.   The Guardian was asked if Mr. B could act as a “critical friend” to R.  The father did not initially agree to Mr B’s involvement.  In any event he came into the case as the Guardian and the father understood in a supportive role.  It was not intended that he was to prepare a report for the court. He did not expect to become a witness. The contents of his sessions with R were to be confidential. 
71.	Mr B saw R on 5 occasions between 16th July and the date of his letter of 16th September.  He last saw him on 5th November, the day before this hearing.  It is that meeting in particular which is controversial.  The timing is unfortunate.  R has always made it clear to Mr. B that he does not want to see his father.  On 16th July Mr. B attended a meeting at the guardian’s request which the guardian had arranged with R.  The purpose was to tell R what the options were for the court to consider at this hearing.  Mr B told me that he understood that the Guardian wanted him to be there because she did not feel that she could properly engage with R.  The guardian disputed that.  She told me that having regard to what had happened at a meeting in B when the Guardian had to tell R unpalatable information, she feared a similar reaction and thought it advisable to have the help of Mr. B.  I prefer the guardian’s account of this. I think that Mr. B misunderstood the position and probably had adopted R’s contention that the Guardian did not engage with him. 
72.	When he saw R last night at the mother’s home but not in her presence, he asked R two questions: What would be R’s reaction if the court decided that he should stay with his mother and not see father.   I was told that R said that he would be so happy, life would be perfect and, he would not have to worry about it ever again.  Secondly R was asked what if the court said that he must live with his father.  He replied that he would not go, he would punch and kick and do anything to get what he wanted. 
73.	When the guardian was recalled she was critical of Mr. B.  She suggested that Mr. B has stepped generally outside his original role.  I think that is right.  She described actions of Mr. B last night as irresponsible.  R should not have been asked such direct questions particularly when he was aware of today’s hearing.  I agree.  He failed to follow the basis of his instructions as set out by the guardian’s solicitor in his letter of 13th May 2009.
74.	I have no doubt that Mr. B is entirely well intentioned.  However I fear that he has become drawn into these proceedings in a way that was never intended.  He has a partial knowledge of the case.     
 
75.	Submissions.  I have received detailed written submissions from the parties.  I am grateful for them.  I have read them.  On behalf of the mother I was told that she would agree to the making of a shared residence order.  She would prefer the court to make no orders on either of the father’s applications leaving it to the parents and R to make arrangemen6s for contact.  I cannot see that such a scheme would work.  The mother would in the alternative agree an order for monthly contact and half of the school holidays.  It is pointed out that significant progress had been made since the introduction of direct contact since 2008.  The mother, it is pointed out, has moved from outright opposition to the notion of shared residence.  On the other hand it is submitted that the father’s present stance is regressive.  It fails to take into account that either Residence in favour of the father or no contact with the father will have devastating impact upon R.  I agree that a change of residence will have such an impact, certainly in the short term and for the reasons set out at the end of paragraph 14 of Miss H’s submissions. The evidence suggests to me that an order for No Contact will in the short term be greeted with relief by R.  The long term effects are likely to be damaging.  I do not agree that the father is acting tactically when he puts the two alternatives before the court.  He is supported in this stance by Dr. M and the guardian. 
76.	I agree that contact has generally taken place but the process is putting a great deal of strain upon R. Contact cannot in my judgment be described as satisfactory from R’s point of view.  Miss H in her submissions submits that the father displayed hostility to the mother in the manner of his conduct of the hearing.  I do not share that view.  I thought that the father conducted his case with firmness but also with restraint.        
77.	It is said that the father’s change of position in January 2009 in seeking a change of residence is unsupported by evidence and would be harmful to R’s welfare. 
78.	An important point made by Miss H is the difference that exists between the two households.  The mother is a single parent able to devote her full attention to R.  The father’s household is a busy one in which the adults have demanding careers.  The father’s step children visit frequently.  The father may be posted abroad (although he told me that he does not expect it).  In any event he will need to spend some nights away from home.
79.	At paragraph 21 of her submissions Miss H sets out six reasons which it is said justify the court in refusing to follow the expert’s advice.   I have carefully considered them. 
80.	Miss H begins her criticism of the guardian’s advice at paragraph 22.  In essence it is submitted that to follow the guardian’s advice will be contrary to R’s welfare. It is said that for the guardian to describe the court’s decision in 2004 as flawed and an injustice to R is intemperate.  I do not see it that way. The guardian was, of course, speaking with the benefit of hindsight and upon the basis of what has happened since then.  Clearly the scheme which the court sought to instigate had not worked.  R had not enjoyed contact with his father.   It is said that the guardian has not grasped and dealt with the difficulties that may arise in the “mirror” handovers between the two households.  It is also submitted that in the event of a change of residence it is likely that the father will seek to reduce the amount of periodical payments and therefore litigation of some sort will continue. I do not know if that will happen.   I heard no evidence about that or of the parties’ respective finances. I cannot make finding as to the likely financial impact upon the mother and whether it is possible that she might have to move to smaller accommodation.  All I can say is to make the general observation that if the mother did have to move and depending upon the circumstances, it might have undesirable consequences for R.  
81.	It is also said that the neither the guardian nor R’s solicitor have sufficiently canvassed R views.  I do not agree.  I am in no doubt of R’s powerfully expressed view.
82.	Finally it is submitted that the evidence as a whole does not support a change of residence because the mother has complied with the orders for contact.  R is aged 11 and it is submitted that that his wishes and feelings are entitled to carry considerable weight.   Miss H attached to her written submissions copies of the decisions in Re R (A Child) [2009] EWCA Civ. 445 and Re H (Care Order: Contact) [2009] EWCA 1245.  I shall hear any submissions that may arise from those authorities and from V v V [2004] EWHC 1215 Fam.  In the latter case it was recognised that there may be circumstances in which a parent’s denial of contact could justify the transfer of residence to the other party. I have also been referred to the well known authority of Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573.                    
83.	The father and the guardian made essentially the same points.  It was pointed out that R has a right to the respect for his family life under Article 8 which in this case means a relationship with both sides of his family.  This it is submitted has been denied him by his mother.  It is submitted that the mother’s hostile view to the father has not shifted and that she has alienated him from the father.  If there is no contact R will understand this to mean that there is something wrong with the father and his family.
84.	The guardian pointed to the difficulties in the enforcement of the Order following the judgment in May 2008.  In July 2008 the mother was asking for a variation of the order to provide for indirect contact only.  The mother, it is said and I agree, objected to the Slovenia walking holiday upon the basis that R had a disability which it emerged was completely without medical foundation.   
85.	It is submitted that Dr. M has carefully reconsidered his advice but since January 2009 has remained firm in his view that R is an “alienated” child.  It is pointed out that Dr. M has dealt with the options at D156.  He accepts that there are likely to be serious difficulties in the short term.  It is important to bear in mind that if R moves it will be to his father’s home, not to a place which is unknown to him.  The father has proposed that R will have regular staying contact with his mother.  The contact will be essentially the mirror of the contact that R is supposed to have with his father.
86.	Counsel for the guardian submitted that my Finding at A59 to the effect that the mother did not agree that R was adversely affected by the absence of his father continues.  I think that upon the basis of Counsel’s submissions at pages 6 and 7 such is still the position.       
87.	It seemed to me that the mother’s case included an element of criticism of the father in that he has persisted with his application.  If that is so, I do not accept it.  His approach to the case during the time that I have been dealing with it has been to follow the advice of Dr. M and the guardian.  He has been acting in person throughout.  Many fathers would have given up before now.    
88.	I remind myself that the welfare of R is my paramount concern.  This applies to his welfare both in the short, medium and long term.  It is asserted both by the guardian and the father that the present arrangement as to contact does not promote his welfare.  Although to establish a healthy relationship with his father accords with R’s welfare, the existing process is placing a level of stress upon R that is or is likely to amount to significant harm.  For different reasons the mother in my judgment does not believe that contact between R and his father accords with his welfare.   I find that R is aware of his mother’s feeling and he is consequentially subjected to a damaging tension.   I fear that the mother has little insight into the consequences of her behaviour.

89.	The Checklist:  I refer to the analysis in the earlier judgment at A63 – A64 and to that carried out by the guardian in her various reports.  
90.	Wishes and feelings:  As the Guardian has recorded in her reports, R has consistently told her that he does not wish to see his father and wants contact to stop.  As the guardian had predicted in July 2008 R has become more hostile about his father.  If the court were to act upon R’s expressed wishes as to contact it would cease.  R has said that he could manage a reduced level of staying contact as the guardian was at one point suggesting but I think it unlikely that contact, for example for alternate weekends or for a weekend a month would be of value.  I think that it would also cease.  The process would subject R to the same pressures as at present.  In considering the weight to be placed upon his view it is important to record the obvious point that R is older than at the last substantive hearing.  The Guardian and Dr. M have each considered the question as to whether R is able to express a view which is sufficiently balanced and considered.  The advice is that in the particularly difficult circumstances of this case he is not.  He has become too involved in the process to the extent that in the Guardian’s view he has attempted to control the outcome.  At paragraph 19 of her report on page D187 the guardian described R’s portrayal of his time with his father to be characterised by minor niggling criticisms, to be unbalanced and illustrated a determination to find fault.   I accept that opinions of Dr. M and the Guardian.   I therefore listen to and take account of R’s view but it cannot be determinative of the result.
91.	Needs: His physical and educational needs can be met in the home of either of his parents.  The issue in this case is how to meet his emotional needs and in particular to establish a healthy relationship with his father and the paternal family. The mother’s need for R and her fear of separation from him was commented upon by Mrs. K in her report of 1999.  The father told me (and I have no reason to doubt it) that upon the death of the R’s paternal grandmother copies of letters and cards were found which she had sent to R but with whom she had been denied a relationship for most of his life.  The absence of a relationship with his father and paternal family is a serious loss to R.  The guardian submits that the father can meet R’s emotional needs whereas the mother is unable to meet his emotional need for a relationship with his father.  I agree.  
92.	Change in R’s circumstances:   A move to his father’s home will be a major change for R. It will be hugely disruptive and upsetting to R. The two households are very different. However R showed a relatively muted adverse reaction when the guardian told R one option for the court to consider was a change of residence. He will also have to change his school.  It was hoped that this hearing would have been concluded before the start of the autumn term.  A move now will have to take place during or at the end of his first term in his existing school to which he moved in September. He is doing well at school.  I agree that a move is undesirable.   The guardian and Dr. M accept that it will be difficult for everybody involved and that R will exhibit significant symptoms of anger and distress.  On the other hand having seen and heard the father and S,  I am of the opinion that they are able to deal with the situation firmly and sensitively.  I agree with the guardian that the father will need to make arrangements in respect of his new posting to be at home and on hand if there is to be a change of residence.   Further I am of the view that R’s contact with his mother will be actively promoted by the father.  If I am right about that, R will benefit from his relationship with both sides of his family.  I share the guardian’s concern that the mother may lack the resources to help R make the necessary adjustment although, as I have earlier observed, I think that the mother is stronger than she may appear.  I also note that if R remains with his mother, there will also be a change because the father has said that he feels it futile to pursue the issue of contact.  In the short term that will come as a relief to R.  I have concerns as to how this might be presented to the R by the mother.  In any event it is likely that R will conclude that his father has given up on him.
93.	Age, sex, background and other characteristics:  R is approaching the age of 11.5.  He has lived all his life with his mother and for most of it in a situation of parental hostility.  He is burdened with the weight of feeling that he cannot freely enjoy good times with his father. I agree with the guardian that when he was too young to make a considered decision R made up his mind that he did not want to see his father.  He continues to make relatively trivial complaints about the father’s household in order to justify his long held opposition. 
94.	Harm:  As I said in my earlier judgment at A64 R had already suffered emotional harm.  I agree with the guardian that the mother’s actions as to R’s alleged walking difficulties subjected him to an unnecessary medical examination.  It is the contention of the guardian that the harm has now become significant.  I agree. Given the father’s stance, if R remains with his mother he will not see his father.  I have already said a move to his father carries with it the risk of harm.  As in so many of these sad cases the court in the end has to decide which of two imperfect solutions is preferable. 
95.	Capacity of the parents and S:   The issue is the capacity of the relevant adults to relieve R of his present emotional turmoil and to achieve a healthy relationship with both ides of his family.  The evidence and expert opinion suggests that the father and S are more likely to be successful. The mother’s parenting is deficient is deficient in that she cannot bring herself to promote a good image of the father.  She has allowed R too much power in this situation.     
96.	Conclusion:   I agree that there has been progress in that R is having contact with his father.  It has not progressed as intended in that I find that the mother is not able fully to support it in the ways described by the father and the Guardian.  I also find that the mother’s process of alienating R from his father began a long time ago.  I accept the submission that was made by the father to the effect that the mother’s apparent position has changed when it has become clear to her that the court has been considering an alteration such as a change of residence. 
97.	The court is being asked to make a momentous decision.  Accepting, as I do the points made by the father, Dr. M and the guardian in criticism of the mother it is nevertheless necessary to pause and reconsider the position.  I undertake this exercise in the light also of Mr. B’s evidence.  However as the Guardian said in so far as R’s wishes are concerned I have not learned anything that I did not know before.  I asked the guardian if, in the light of Mr. B’s evidence, she wished to change her recommendation.  For reasons that seemed to me to be compelling she did not. 
98.	 To remove a child from his mother in any circumstances is a very serious step.  R has lived with his mother all his life.  The effect of a decision to change residence upon the mother will be severe.  R will be aware of that.   I pause to ask myself if the proposed course of action is really in R’s overall welfare. I ask myself if Dr. M can be fairly be described as dogmatic in the way that Miss H submits.  His evidence was firm and compelling but I did not see it as unreasoned or blinkered.   I ask myself if the Guardian has sufficiently analysed Dr. M’s advice in her global consideration of the case before she came to her conclusion.  The guardian has made a careful study of the lengthy history of the case before the current set of proceedings.  She would be delighted if she felt that a shared residence order between the parents with proper contact by R with his father would work.  The guardian does not believe that R is truly reporting what occurs during contact with his father.  She is of the opinion that such an order would cause an end to contact with the paternal family.    I disagree with the guardian when she says that solution is clear.  I think that it is finely balanced but having said that I accept the guardian’s overall analysis.   
99.	I accept that the present position is not in R’s welfare for reasons that I have already set out. I am therefore of the opinion that there should be an order for Joint Residence in favour of the father and. S.  There will be a contact order in favour of the mother.  The details of this will need to be arranged but in essence R should stay with his mother on alternate weekends and for half of every school holiday.
100.	I have also been invited to make an order under section 91(14) of the Children Act.  It is suggested on behalf of the guardian that such a prohibition should apply to both parents and last for 3 years.  I have considered the decision Re P (above).  It is clear that R has been the subject of litigation for much of his life.  Miss H submits that to impose such a filter ignores the difficulties that may continue to arise in this case.    Given the decision that I have made as to residence I think it premature to impose such a restriction. It may fall to be considered on another occasion.  I have also been asked by the father and the guardian to indicate that Mr. B should no longer have an involvement in the case.  I think that he should withdraw but that this will have to be carefully managed and with proper explanation.      
101.	Finally there must be an agreed formula for telling R of this decision.

6th November 2009.