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	High Court of Justice in Northern Ireland Family Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Family Division Decisions >> KT v ST [2017] NIFam 7 (03 May 2017) URL: http://www.bailii.org/nie/cases/NIHC/Fam/2017/7.html Cite as: [2017] NIFam 7

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[2017] NIFam 7	Ref:	KEE10246
Judgment: approved by the Court for handing down	Delivered:	15/03/2017
(subject to editorial corrections)*

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND _________ FAMILY DIVISION _________ IN THE MATTER OF THE CHILDREN (NORTHERN IRELAND) ORDER 1995 AND IN THE MATTER OF AN APPEAL ________

BETWEEN:

KT

Appellant;

-and- ST

Respondent.

(APPEAL: INDIRECT CONTACT ORDER: ARTICLE 179(14) RESTRICTION) ________

KEEGAN J

Introduction

[1] This is an appeal from an order of His Honour Judge Kinney sitting at the Family Care Centre in Belfast on 21 November 2016. KT is the father of the children. ST is their mother. The subject children are I aged 6, L aged 10 and K aged 11. I note that ST has another teenage child R who has significant disability and who was treated as a child of the family during the marriage.

[2] I have anonymised this judgment to protect the interests of the children. Nothing may be published which may identify the children or the adults in any way.

[3] There are three main parts to the appeal given the order that was made by the learned judge. Firstly, the order directs that:

(i) The contact order in favour of the applicant made by Belfast Family Proceedings Court on 29 September 2014; reaffirmed by the Family Proceedings Court on 3 September 2015 and on appeal before HHJ Miller QC on 29 October 2015; will continue in the same terms in respect of the two youngest children L and I.

(ii) An indirect contact order is made in respect of K.

(iii) An order under Article 179(14) of the Children (Northern Ireland) Order 1995 is made barring the applicant from making any Article 8 application in respect of the subject children of these proceedings for a period of 18 months.

[4] The appeal notice was lodged out of time but in a previous ex tempore judgment I allowed leave to extend time on the basis that KT is a personal litigant who expressed some confusion regarding the procedure. He understood that a written judgment with reasons would be provided or a C19 pursuant to the Children Order Advisory Committee Guidance and so he waited before filing his notice of appeal. Having looked at the Guidance I note that it also makes clear reference to the strict time limit for a notice of appeal to be lodged. That is 14 days and as the appellant clearly read the guidance he would have seen that. So I approached his submissions with some scepticism. I dealt with the leave application in detail and I provided the decision of Maguire J in JG’'s Application 2014 NI Fam 4 to the appellant. He then addressed me and I heard a submission from Mrs McGurk who opposed the application to extend time.

[5] In determining the time point I considered the salient features of this case as follows. To begin with the appeal was only two weeks out of time. In my view ST may well have anticipated it given the history in this case. My main concern was the effect on the children but I considered that as the appeal would be conducted by way of oral submissions that leave to extend time should be allowed. While not forming a concluded view in relation to the substance of the appeal, I considered that there was an argument worthy of hearing. So I granted leave. However, I want to stress that this was a borderline decision and it should not be taken for granted that every similar application will be successful. In particular I stressed that a personal litigant in any case must abide by court rules. In this KT is not a novice in that he has appealed orders before and so he should have known the correct procedure.

[6] KT appeared as a litigant in person in this appeal. He had the assistance of a McKenzie Friend, Mr McGuigan. Mrs McGurk BL appeared on behalf of ST. I am grateful to KT and Mrs McGurk for the written and oral submissions that they made. I was to deliver judgment on 13 March 2017 however KT had sent further submissions to the court. I therefore asked both parties for comment before I delivered my judgment.

Background

[7] There is a long history of litigation in this case which I do not intend to repeat in great detail. Suffice to say that this case has now been before the courts for some three years. The parties were married and a separation occurred some time in December 2013. Thereafter, this case has been characterised by acrimony on the part of both parents. There is a domestic violence history in that ST has had to obtain protective orders and KT was subject to a restraining order as a result of criminal proceedings in relation to his behaviour towards ST. It is clear to me that the parents have had difficulties seeing past their own issues with each other, the issues of new partners, and what arrangements are best for the children. That led to the court being required to settle arrangements for the children on 29 September 2014. On that date at Belfast Family Proceedings Court an arrangement was made between the parties by consent whereby an order would be made as follows:

(i) A residence order in favour of the respondent mother.

(ii) A contact order in favour of the applicant father in the following terms:

(a) Each Wednesday from 6.00 pm to Thursday at school beginning the week of 3 November 2014.

(b) Alternate weekends from 6.00 pm on Fridays until 4.00 pm on Sundays (K’'s attendance at football on Saturdays to be facilitated).

(c) Summer holidays, one week July and one week August each year.

(d) Christmas 10.00 am to 6.00 pm Christmas Eve. 12 noon on 26 December to 6.00 pm on 27 December.

(e) Other school holidays: 2½ additional days contact.

(f) The applicant’'s partner may be present at contact from December 2014.

(g) Such other contact as can be agreed between the parties.

[8] This was a comprehensive and clear order which was agreed between the parties. Unfortunately, the order was not allowed a long period to bed in as there were further proceedings brought in 2015 by KT. These led to an order made by the District Judge on 3 September 2015 whereby the proceedings for a contact order were dismissed on the merits. On that date the District Judge made an order under Article 179(14) of the Children Order that no application of any kind with respect to the children could be made by the applicant without the leave of the court for the next 12 months.

[9] These orders were appealed and I have read a decision of His Honour Judge Miller in that regard. The judge issued a written decision and dismissed the appeal so that the orders of the lower court remained in place. I understand that an appeal was then brought to the High Court but that was dismissed for want of jurisdiction. So the case on the ground proceeded on the basis of the original order of 29 September 2014. Whilst that contact regime was not without difficulties it did appear to work until January 2016. At that time ST decided to suspend the contact which was due to take place on 6 January 2016. She referred the matter to Social services in relation to a contact session which took place on 30 December 2015. It appears that contact was reinstated with L and I fairly swiftly however it remained suspended with K.

[10] A UNOCINI report was prepared by Chantelle Hamill dated 29 January 2016. The conclusion section summarises the social work position as follows:

“"The referral was made due to concerns about the quality of contact between the children and their father. ST made the referral as K had disclosed to her that KT had hit him on the arm during the New Year’'s contact, and that his father tugs his clothes, shouts a lot and treats him more harshly than his two younger sisters. I met with the children independently at school and they each shared that their father shouts a lot during contact and they wanted it to stop. L highlighted that this was predominately at K and that she feels K is often blamed for things. K raised further concerns by confirming the initial allegation that his father had hit his arm and on one occasion allegedly pulled him by the collar. K presented as very upset and anxious when discussing contact with his father, and he is not willing to return to contact at this time. It is believed that it would be in K’'s best interest to progress some mediation work between K and his father before requesting that K returns to contact. KT agreed to engage in this work and ST agrees that it would be beneficial for K. A referral has been made to the Family Centre on 26 January 2016 to focus on a plan of work with the aim of re-establishing contact and it is recommended that the case closes at this time.”"

[11] The report highlights many problems in terms of KT’'s behaviour and in my view it is important to note that L and I were also concerned and they referred to their father shouting at contact. The incident at New Year seems to me to have been the straw that broke the camel’'s back. ST alleged that K came home and said that his father had hit him and that he did not enjoy that and that he had been reprimanded. She alleged that the child had sustained quite a serious injury and that he said his arm was red. There were no physical signs of that when he returned home. KT accepted that he reprimanded the child over something fairly trivial and that he tapped him on the arm. I can therefore understand why social services became involved. ST was given some advice that she should make the decision as to whether or not contact should continue. In the event ST decided that contact should not continue and KT has not had direct contact with K since that time save two short attempts.

[12] In a sense there is still a factual dispute about the extent of the activity that took place on 30 December 2015. However, on either version of events, the UNOCINI report presents a very worrying picture. The children refer to shouting. There is also a backdrop in that K was struggling at school. He has since been diagnosed with dyslexia. It is also clear from the papers that the father was particularly exercised about K’'s education and may have put pressure on him about that. I note reference to KT rubbing out homework and saying that ST was unable to do K’'s homework. It is also important to note that K initially said he would go back to contact as he was scared that if he did not his sisters would get shouted at.

[13] After this incident there was an application by KT for leave to apply to the court. He had to apply for leave as a result of the previous order. It is important to note that leave was conceded and so the application came before the court. However, that application that was adjudicated upon is dated 18 July 2016. The reasons for the delay will become apparent.

[14] It is stated within that application that a previous application was lodged in the Family Proceedings Court but it was transferred to the Family Care Centre on 24 March 2016 due to complexity. KT in this application says that ‘'I withdrew my previous application to the Family Care Centre as the family was involved in a process of mediation conducted by a Family Centre’'.

[15] This course was suggested by the District Judge and KT and ST and K were involved in it. In his application KT says this process proved unsuccessful and unsatisfactory and as a result he brought the application to the court. He says in his application “"I was commended by the judge for committing to the mediation process and fully engaged with the social worker involved. I now have been forced to return to court and it would seem from communication from the respondent that she is determined for further court action”".

[16] The appellant then raises various other matters in the application which I will come to in due course. In any event this application did not come for determination or case management prior to August 2016. There were a series of case management reviews from that time leading up to the hearing in November 2016. It is important to note that prior to Judge Kinney’'s seizure of the case the matter was listed for directions before the Recorder His Honour Judge McFarland on 24 August 2016. KT states that the Recorder on that day said that ‘'the status quo could no longer be allowed to exist and that contact needed to be re-established immediately’'. It appears that on that day the Recorder took an active role in trying to move contact forward and the suggestion was that the child K would go to the father’'s house to see a new puppy on 4 September 2016. K attended the court directed contact at the appellant’'s house on the instructions of the Recorder. ST had to attend with him to reassure him. It seems to me that the contact itself went relatively well however after it took place K said to his mother that he did not want to have further direct contact.

[17] Thereafter directions hearings were heard before His Honour Judge Kinney. In particular I have heard that at a pre-trial directions hearing Mrs McGurk raised the issue of the social worker from the Family Centre attending to give evidence. That was agreed to. Mrs McGurk also raised the issue of an Article 4 welfare report being provided for hearing. At the hearing before me KT accepted that he was opposed to this application because he did not want the children having any further disruption. His Honour Judge Kinney then decided to proceed on the basis of the Family Centre report.

[18] I have read the transcript of the hearing on 21 November 2016. KT appeared as a litigant in person with a McKenzie Friend. He also gave evidence. ST gave evidence and was questioned by KT. The social worker Ms Walsh from the Family Centre also gave evidence and the judge gave an oral ruling at the end of the hearing.

The decision of the learned trial judge

[19] I have read the decision of Judge Kinney which was given immediately after the hearing. He begins by saying that in the course of this hearing ‘'it seems important to acknowledge that the parents have an acrimonious relationship, but both are concerned with the impact of the relationship on their children’'. He states that each believes to a greater or lesser extent that the other person is the responsible party. He states that neither can apparently get past their own short term interests in blaming the other parent for their problems. He states that their lack of insight and inability to prioritise the interests of the children over their own is worrying and sad. The learned judge then goes on to assess the intervention of the Family Centre. He states that he has heard evidence of K’'s wishes and feelings in the report from the Family Centre.

[20] The learned judge refers to the fact that K rated his mood at 2½ out 10, which the judge describes is a ‘'damming thing in my view for any child of 11 to be saying about his life’'. The judge quotes from the Family Centre report that K “"hated school and wasn’'t happy because of the whole daddy thing”". The judge also refers to part of the issue with school being related to the perceived pressure felt by K from KT to do the transfer test and to go to a school he did not want to. The judge records that K has since been diagnosed with dyslexia.

[21] The judge then makes certain findings against the appellant KT. He says that he is satisfied that KT completely lacks insight into how he presents to K. The judge says this:

“"Sadly I believe that nothing I say will change KT’'s views, however until he gains some level of insight and takes steps to address his rigid and inflexible thinking he will not make progress in his relationship with K and in my view is likely to damage his relationship with his daughters. It is for the adults in this case to do the work not the children.”"

[22] The judge then states that he does not consider it appropriate to force K to have direct contact with KT until KT resolves some of the issues in his own life and this is particularly so with K reaching an important stage of his educational development. The judge states that the relationship can be rescued but it is KT’'s responsibility to do so. He says:

“"I am satisfied that both KT and ST would welcome such change in embracing their relationship. It will not happen overnight, it will take time and as I say it will require KT to take a different view and a different outlook to the supports that are available to him to try and find an appropriate way forward.”"

[23] As a result of these findings the judge makes his order. The judge dismisses the application in relation to shared residence and the application to change the contact order in relation to the two girls. He makes the indirect contact order in relation to K. As regards Article 179(14) he says:

“"In light of the protracted nature of this litigation and the stress and pressure it has brought to bear on the lives of all of this family and the fact that I find that nothing more can or should be done in relation to this matter until some work has been carried out he made the Article 179(14) order for a period of 18 months and for that period to give some breathing space to the children.”"

Submissions of the parties

[24] I have read the appeal notice dated 19 December 2016 and whilst it contains ten grounds of appeal, KT in his oral submissions made a number of core points as follows. Firstly, he argued that the judge had erred in not taking into account the ascertainable wishes and feelings of all three children in making assessment of this case. Secondly, he said that the court had erred in not applying the welfare checklist. Thirdly, he argued that the indirect contact order was wrong in that it should have carefully specified the extent, type and duration of such an order. KT contended that the decision of the court is vague and undefined and therefore impermissible. Fourthly, KT argued that the children were requiring further contact, that is the two girls of the family and that he should have further contact at holiday times and Christmas. Fifthly, KT argued that the Article 179 imposition was inappropriate as it provided for a full 18 months whereby he would need leave to bring any application.

[25] In his submissions to me KT referred to a number of updated documents in the court bundle. Firstly, he referred to the issue of K’'s dyslexia which has now been identified. He said that this put a context on the problems with K’'s education and some aspects of his presentation. Secondly, KT referred me to some e-mail correspondence that he has had with K since the indirect contact order was made. I should say that this second category of material was not before the learned trial judge. I accept that the content of this material is entirely appropriate and this e-mail correspondence gives me hope that the relationship can be repaired. The e-mails from father to son highlight that despite all that has happened there is a bond between father and son and they have common interests such as football, computer games and Star Wars.

[26] There is also correspondence that was referred to in the papers between KT and ST about K’'s choice of school. Again this was not before the trial judge. This correspondence also gave me hope because the choice of an integrated school was agreed between the parents. All in all the thrust of KT’'s argument was that he should have more contact with the girls, he should have a shared residence order, and that he should have his relationship with K developed. On the last point he said that no court had really grappled with what had happened to the relationship and how it should move forward.

[27] In her submissions, Mrs McGurk articulated the undeniable fact that this case has been before the court for a long time. She made the case that the matter has been properly adjudicated upon. However, she said that the difficulty is that KT cannot accept the adjudications against him. Mrs McGurk also referred to the history of the case which includes non-molestation proceedings and orders made against KT in relation to his behaviour at the breakdown at the marriage towards ST. In reply to KT having referred to the stress upon him, Mrs McGurk rightly referred to the stress of these proceedings on her client. She also pointed out that there is a stress upon the children.

[28] Upon questioning by the court, Mrs McGurk helpfully stated that the decree nisi had been made and that the parties were about to enter into some discussions about financial matters. She pointed to the fact that some additions to contact had been made over the years and that her client was open and willing to KT having a proper relationship with K. Mrs McGurk stressed that her client had not stood in the way of this, but this case really came down to KT’'s own behaviour causing the problematic state of current affairs.

Consideration

[29] I am considering this case as an appeal and as such it was accepted that it should be upon the submissions made by the parties to the court. The appellate principles are set out in the case of Re B [2013] UKSC 33 whereby I have to determine if the judge was wrong, taking into account the fact that the judge heard evidence and made an assessment on the facts of this case.

[30] The first point to note is that the leave application was brought because contact stopped with K and then the mediation process failed. That was the substantive case before the court. That was the basis upon which leave was conceded. In my view it was open to any court to decide that leave should only be granted in relation to K. The judge allowed KT to make an argument about shared residence and the contact order pertaining to the girls. However, I cannot see that there was sufficient evidence to support these applications. It is clear to me that the shared residence application was a knee jerk reaction to the K issue. It also seems to me that the contact order that was made in 2014 and reaffirmed twice in 2015 was working well in relation to the girls. By virtue of that order KT enjoys a high level of contact including staying contact. I cannot see that there was a properly formulated case for change. KT also opposed the obtaining of a welfare report. So I reject any appeal in relation to the case of the girls. In my view the case really relates to K. The judge has not erred in his decision in relation to affirming the orders in relation to L and I. KT may bring a properly formulated application in relation to them in the future if he so wishes but in my view he should think very carefully about that and he should concentrate on improving contact with K at the moment.

[31] In relation to K, it is very unfortunate that direct contact stopped in January 2016. It seems to me that KT’'s behaviour is clearly a causative factor. There was an acceptance that a mediation process should be utilised to resolve the issue. This was an extensive process involving many sessions of work. That puts into context the argument that there was some failing in getting to grips with the effect of what happened and whether it should have led to direct contact being stopped. There was a question as to whether ST had overreacted. However, the fact of the matter is that KT accepted that something happened. It clearly affected K. There was a context given the education issue and K’'s own vulnerabilities. The issue was how the breakdown could be repaired. I am not convinced that there is much more to it than that.

[32] In effect, recognising the problem, both parents wanted to move on through mediation. The court was not asked to adjudicate on the matter in January 2016 as this route was taken. KT exhibited anger at times through the mediation process. He now resurrects his grievances as the process did not work out as he would have liked. However, I do not consider that it is really very productive for him to go back over this ground. We are where we are. It would be better to concentrate on trying to build on the positives which I identify in this judgment.

[33] I do not accept the point made by KT about ST’'s alleged breach of order. It is clear to me that after the cessation of contact, a mediation process was attempted. ST involved herself in this notwithstanding the fact that there was a domestic violence history. She also made sure that K attended a session. I therefore reject the argument made that ST was in constant breach of the order. I also reject the argument in relation to alleged ‘'parental alienation’' as I cannot see that it is sustained on the facts of this case.

[34] I understand KT’'s point about the attempt made to restart direct contact by the Recorder. That was a good idea and it is a pity it did not develop. I also note that ST facilitated it. It is a fact that different judges have different approaches to cases but that does not make one judge wrong and another right. The nature of family cases is that they constantly change. His Honour Judge Kinney was the trial judge and he had the benefit of hearing all of the evidence before reaching a conclusion. I consider that this case has been fully considered by the courts. The problem is self-evident and the courts have suggested solutions on numerous occasions.

[35] In relation to the substantive case, KT’'s point about the lack of a welfare report is not convincing. This is because he opposed it and in any event a Family Centre witness gave evidence about K. The judge had extensive material about K’'s wishes and feelings. The point made by KT on appeal is made with hindsight. I cannot say that the judge was wrong given the way the matter was presented to him.

[36] I pay particular regard to the fact that the judge heard from the parties and the Family Centre witness. It seems to me that the judge’'s conclusion was based in large part upon his impression of KT in evidence and in my view such an assessment should not be interfered with by the appellate court without good reason. The judge does say that both parents bear some responsibility for the situation and for finding solutions. Having read the transcript it is clear that KT did not do himself any favours by the way he conducted himself during the hearing and in relation to some of the comments that he made.

[37] I reject the argument that the Family Centre witness went beyond remit. It seems to me that she was perfectly placed to comment upon K’'s wishes and feelings. The judge was in no doubt as to his wishes and feelings which are important given his age.

[38] I do accept KT’'s point that the welfare checklist was not specifically referred to. However, such an omission is not fatal to a family ruling as long as the main issues have been considered. KT has not referred me to any of the factors in the checklist which may have led to a different decision being made. It seems to me that the judge did implicitly assess the core issues namely the ascertainable wishes of K, his age, sex and background, his needs, the likely effect of any change, the capability of the parents, harm, and the range of orders available. It would have been better if the judge had made specific reference to these matters but in my view that does not invalidate the decision. This judgment was made ex tempore. In truth the decision is clear in terms of a welfare assessment and it has K at its centre. In my view the judge could have reached no other conclusion in relation to contact at that time. His decision accords with the welfare principle and the factors within the welfare checklist.

[39] It is clear to me that KT did not help himself by raising many extraneous issues. However, he should be able to focus on the core issue and recognise what has gone wrong and give a commitment to behave better towards K. Essentially the judge placed the initiative with him and so KT would be well advised to concentrate on this and gather together the necessary evidence. KT was not left in the dark about what the judge thought he needed to do as reference was made to interventions that may assist such as counselling and work with Parenting NI. However, fundamentally a change in attitude is needed. I consider that any court would need to see that before moving on. I am not entirely convinced that a long period of ‘'work’' is required. KT could do something as simple as writing a letter to K accepting his responsibility and saying things will change. He needs to rebuild trust to reach a situation where K feels comfortable with extending contact. A contract or a parental responsibility agreement could be constructed. I agree that the initiative is with KT.

[40] I have also considered the Article 179(14) restriction. I note that in her statement ST asked for this order for at least 24 months. The context is that a 12 month order had been in place and one justifiable application was brought to court in the life of that. It must be remembered that an order of this nature is an order of last resort. This is a discretionary remedy which will depend on the facts of each case. There are a number of important cases in this area which are referenced in The Law of Children in Northern Ireland: The Annotated Legislation: Long and Loughran at page 131, footnote 395.

[41] In particular, in L and Another (Re Children) Northern Ireland Order 1995 [2004] NI Fam 7 Gillen J quoted the principles governing such an application as set out in Re P Section 91(14) Guidelines (Residence and Religious Heritage) 1999 2 FLR 573. The summary of this jurisprudence is that an order prohibiting applications should be made sparingly and that it would be preferable if judges made specific reference to the guidelines in order to reassure the parties that appropriate consideration has been given to the legal principles by reference to the welfare of the child as the paramount consideration. In this case the judge refers to ‘'breathing space’' as explaining his rationale and I entirely agree with that given the factual circumstances.

[42] The issue of an Article 179(14) restriction will have been within KT’'s contemplation as a 12 month order had been made before and ST referred to it in her statement. I consider that the judge was entitled to make an order on the facts of this case. I have considered whether I should impose some lesser restriction in the light of what I have heard and my own view of the case. I have decided that I should adjust the restriction as K is only having limited indirect contact. I have decided that a 6 month restriction is appropriate rather than the 18 months imposed by the judge. This is not an invitation to KT to bring unnecessary proceedings. In particular, I do not encourage another case about shared residence. Also KT should be careful about any application to change established arrangements regarding L and I. However, I do offer some incentive to him to try to reflect on what he needs to do regarding K. KT should fully explain in any application he makes how matters have changed and why the court should hear a particular application. I stress that any future application needs to be properly formulated.

[43] Overall, I consider that the judge acted appropriately on the basis of the evidence before him in affirming the orders in relation to the girls and in making an indirect contact order regarding K. In relation to K, some authority has been presented that the making of a ‘'no direct contact’' order offends KT’'s article 8 rights to family life. It is correct that article 8 is engaged and the court has to act in a convention compliant way. In his recent supplementary skeleton argument KT refers to RE A (A Child) 2013 EWCA Civ 1104. The point made in that case is uncontroversial namely that there may be an interference with article 8 rights depending on the facts of a case. The facts of RE A are very different in that there was no overt justification for refusing contact in that case other than the unjustified hostility of the mother. I consider that in this case the judge acted in a convention compliant way in making the orders that he did.   

[44] In his supplemental argument, the appellant also relied upon paragraph 40 of the judgment in RE G (Children (Same Sex Partner)) [2006] UKHL 43 which reads as follows:

“"My Lords, it is of course the case that any experienced family judge is well aware of the contents of the statutory checklist and can be assumed to have had regard to it whether or not this is spelled out in a judgment. However, in any difficult or finely balanced case, as this undoubtedly was, it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear. This is perhaps particularly important in any case where the real concern is that the children''s primary carer is reluctant or unwilling to acknowledge the importance of another parent in the children''s lives.”"

The facts of this case were again very different and this paragraph reinforces my view that the fact that the welfare checklist is not spelled out is not fatal. I do not consider that this was a finely balanced case as the issue of K was obvious. Also in this case ST does recognise the father’'s position. He has good contact with the two girls and ST wants him to repair his relationship with K.

[45] I consider that KT was afforded a fair trial. In the substantive case, having read the transcript, I cannot see any errors and no specific points were made by KT in oral submissions in support on this ground of appeal. KT is a litigant in person but he is an intelligent and articulate man. He also had his Mc Kenzie friend and as such I cannot see that any prejudice was occasioned to him. Indeed, the judge allowed KT to cross examine ST notwithstanding the history of this case.

[46] I cannot see that the judge erred in law in relation to the substantive application. KT did not make any convincing argument to me that the trial judge should have ruled on or referred to a particular authority and so I reject that ground of appeal. This case was very much decided on the facts.

Conclusion

[47] I do see some potential for change in relation to K. I base this view upon the updated material and KT’'s submissions to me. It is unfortunate that to date KT’'s approach has been accusatory in nature. I do not consider that attempts to undermine ST have been helpful. Despite this, and to ST’'s credit, I see the recent communication that has taken place between the two parents about K’'s dyslexia and his choice of school. In my view, KT should be careful not to upset the progress already made in relation to K. However, I consider that it may be built upon in the future. This does seem to be a common goal. The parties are going to be talking about financial matters so they should also be talking about K. KT will have to demonstrate a change of attitude and accept some responsibility as I have said at paragraph [39] above.

[48] I therefore agree in large part with the learned trial judge. In an ideal world matters should be able to move on in relation to K. I would have thought that the form of indirect could progress to telephone and Skype if K was willing. It could also be more regular. This could happen before direct contact is attempted again. I would also have thought that the summer period is a good time to try to make progress. KT relies upon the positive nature of the indirect contact and that is encouraging and I hope it can continue. However, he also needs to turn some attention to himself to build up a trust before he can have improved contact with K. I have made some suggestions about how he could go about this. Given the history of this case it is important that K is not pressurised. The current order will remain in place for the time being. However, the parties may agree extensions or changes which may obviate the need for future court adjudication.

[49] For the avoidance of any doubt, I therefore dismiss all of the grounds of appeal save in relation to the Article 179(14) restriction which I vary to one of 6 months. The appeal is allowed in that respect only.