B4/2006/2028

Neutral Citation Nunber: [2006] EWCA Civ 1507
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(HER HONOUR JUDGE ROWE)

Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 5th October 2006
 
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE RICHARDS

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IN THE MATTER OF G (A CHILD)

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 (DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.
MS LAZARUS (instructed by Gales) appeared on behalf of the Respondent.

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J U D G M E N T
1.	LORD JUSTICE WARD:   This is an application adjourned to this court on the directions of Thorpe LJ.  It is an application for permission to appeal the orders made by HHJ Rowe QC, sitting as a Deputy Judge at the High Court on 8 September, when she granted permission to appeal an order made by District Judge Enyon dated 24 August 2006 and allowed that appeal.  She further ordered that the child with whom we are concerned, M, reside with his mother, but that she make him available for contact on a specific date, 11.00am on Sunday 10 September, and thereafter on Tuesday and Thursday afternoons after school until 7.30pm or 8.30pm, depending on the summertime hours; each alternate weekend from after school until father returns him to school on Monday; half the holidays, and so forth.  More particularly she directed that M attend at B Middle School.  Thorpe LJ adjourned that application for permission, with the appeal to follow if permission is to be granted.  

2.	It is necessary to recite some of the history, though I shall endeavour to do it as shortly as I can.  The parties were married on 20 June 1987.  They married in England and they are English, but in about January 2002 they appeared to have made their home in Australia.  M was born on 21 November 1996, so he is shortly to be ten.  The marriage foundered, as the Australian court seems to have accepted, in October 2004, although the father puts the date of the final separation more accurately in August 2004.  The mother had formed some romantic attachment with another gentleman.  He came to England early in June 2004 and it appears that he was killed in a motor accident here, if I understand the position correctly.  That was obviously a traumatic event for the mother and she seems to have attempted to come back to England with M a few weeks later.  She was restrained from doing so and for that she has been criticised by the Australian Court. 

3.	Nonetheless she persisted in her wish to return to the United Kingdom and eventually, in proceedings that have been quite protracted, the matter came back before the family court of Australia.  That hearing was before HHJ Collier, sitting in the Family Court in Parramatta, outside Sydney.  By then there was a fairly established pattern of contact set, as I understand it, by an order of the Australian Federal Magistrates Court, which had been made back in 2004, and that provided for the kind of contact which was reproduced by the deputy High Court judge here, namely for the father to see the boy after school on Tuesdays and Thursdays, and then alternate weekends and holidays to be shared.  

4.	I need not recite much of the judgment of 7 February 2006.  It is a long and careful judgment.  I think the pertinent passages of it may be in paragraph 223, where the judge says: 

“Despite the difficulties of the past, and particularly having regard to the wife’s attempt to leave Australia with [M], there seems to be no evidence before me that the wife has otherwise interfered with the husband’s contact, or made that contact any more difficult, to any marked degree.” 

5.	In reply the father pointed to paragraph 77 of the judgment, where the judge records:  

“She agreed that she had reduced contact.” 

But of course the judge goes on to say:

“She said that M was showing signs of anger. She said everything was deteriorating …”  

The court there appeared to accept (see paragraph 231) that both parties had difficulties.  Each of them seems to have a problem with mental wellbeing; however, in this situation the wife has sought and obtained treatment from a Dr Robinson.  The husband received a referral to a Dr Quinn, but has not acted upon it.  However, I am satisfied that I can accept the evidence of the court’s expert that he has a very real potential for his mental health to be adversely affected as a result of these proceedings.  

6.	The judge found that both parties were pretty determined to be proved right by winning the litigation and obtaining the orders they sought.  He found that the father indicated a determination to impose his will on others in obtaining what he wants (paragraphs 233 and 235), but equally importantly in 244, he was of the view that the situation here is that the relationship between the child and both parents, and it is necessary to emphasise both parents, is strong.  

7.	The conclusion of that hearing in February was that the father’s application to have residence of this boy was rejected and an order was made for the mother to have residence, though each party should have day-to-day responsibility for the care of the child while the child is with their parent.  As for the important application she had made for permission to remove herself and M back to this country, the judge decided that he would give that permission but with effect from 21 November 2007, the day on which the boy would be 11 years old, in order that he have a slightly longer time to cement his relationship with his father.  So until her relocation, contact Tuesdays and Thursdays, alternate weekends and half the holidays was ordered, and there were consequential directions for contact in the anticipation of the father remaining in Australia.  

8.	He soon changed his mind and in or about June or July 2006 he decided that both would come back to this country, and so there was a further hearing in the family court in Australia before HHJ Collier to deal with that aspect, and I will have to refer to his judgment in slightly more detail in a moment, but the upshot of it was that he made an order to this effect: that the parents have equal shared parental responsibility; that the child live with the mother; that he spent time with his father, as I have indicated, Tuesdays and Thursdays after school until 7.30pm, or 8.30pm during daylight saving hours, alternate weekends from Friday until the return to school on Monday, half the holidays and so forth.  

9.	He furthermore ordered that at paragraph 5 of his order, as it appears on page 8 of his judgment, that the child shall, unless otherwise agreed between the parties or further ordered by the court of appropriate jurisdiction, attend the B Middle School.  The mother left almost as soon as she could.  Father complained about the manner of her leaving, but that does not seem to me to be adding much to the unhappy story, and he followed very shortly afterwards in the middle of August.  His attempt to see M in accordance with the order that had been made, which by then would have given him half the school holidays, was frustrated.  He went to see her at her brother’s home in Buckinghamshire, but she and the boy were not there, and he began the proceedings in this jurisdiction by obtaining orders for disclosure of their whereabouts.  

10.	Those directions were made and they led to the hearing before the district judge, which was the subject of the appeal to Deputy Judge Rowe.  The order made by the district judge on 24 August was that the father’s application for immediate contact -- it says with the mother, but it must mean with the child -- was refused, and furthermore that the father’s application to enforce the order concerning M’s education was refused.  The matter was then transferred to the Principal Registry to be listed for a reconciliation appointment.  It was the appeal against the order, which led eventually to the hearing before Deputy Judge Rowe.  

11.	There had been in this chronology another incident which I should mention.  That is that, having been frustrated in seeing the boy at the address in Buckinghamshire where he thought they were living, he went to see them at her parents address in Dorset.  They were not there.  He rushed across to Ipswich.  There was an unseemly incident, which Deputy Judge Rowe wisely dealt with by making no explicit findings about it.  In effect, the contact was not successful.  Mother and son locked themselves in a car.  The father, perhaps not surprisingly, got very angry and more importantly and sadly the police were called, and so Deputy Judge Rowe dealt with that incident by saying in paragraph 28 that:

“In my view, whilst on this occasion and certainly of course subsequently, the father lost his temper in a way he should have not have done and behaved in a way he should not have done, this mother must bear substantial responsibility for what happened in Ipswich by trying to prevent contact so recently ordered by the court in the first place.”

12.	She had expressed her view, correctly I should think, in paragraph 27 which was:

“… this was clearly a distressing incident from [M]’s point of view. It is one he should never have been exposed to and I have no doubt that it led him to become very anxious [sadly, it is not his only exposure to intervention by the police].”

13.	Following the hearing before Deputy Judge Rowe, she, as I have indicated, made orders for contact, including an order for contact on Sunday 10 September.  That contact was again a failure.  There is an account of the reasons for the failure set out by the maternal Uncle and Aunt, Mr and Mrs W, both senior serving police officers and, in summary, the mother decided to remove herself from her brother’s home to leave the handover to them, but that was unsuccessful.  M at first would not come down.  He was persuaded eventually to meet his father at a local public house.  There was an opportunity for father to speak alone to M when the other adults, and they included his mother were standing nearby, but he was unable to persuade M to come with him.  He said the circumstances were intimidating, and the presence of two senior officers was intimidating, and I understand it.  Unfortunately, a police officer later had occasion to speak to M to ensure that he would not go with his father and so, yet again, the police were involved.  That is the last time father has seen his son.

14.	The first question for us is whether or not permission to appeal should be given.  This case has not followed quite the conventional approach, but it is a family case and, whether we like it or not, the rules do not always seem to be as rigorously applied in this division as perhaps they should be.  In order to mount this appeal, the mother has more than just technically to persuade the court that there is an important point of practice or principle justifying a second appeal, or that there is some other compelling reason to entertain it.  There does not seem to me to be any really important point of practice or principle, although the approach taken by the judge was, as I have said, perhaps rather permissive.  She certainly did not approach the appeal with the conventional wisdom of enquiring of whether, on a review of what happened in the court below, there was some plain error in the exercise of the discretion by the district judge; rather, and perhaps encouraged by all  parties, she accepted that, as she put it in paragraph 6:

“… in a sense whatever I do strictly about the appeal itself there has been further evidence before this court … I need today to deal with the issues of schooling and the issues of contact.”

15.	In essence she approached this very much de novo.  Having criticised the kind of lax approach to these matters, this court is nonetheless confronted with a situation which has changed even since the matter was before Deputy Judge Rowe.  Thorpe LJ directed that fresh evidence should be filed by 29 September.  There is, lamentably, no application, properly so called, to introduce fresh evidence, but again no point has been taken by anyone on it and we have to, in my judgment, act upon the evidence as it presents itself today and consider the matter in the light of that evidence. 

16.	In summary, this boy has shown himself unwilling to see his father.  Moreover, the mother has retreated from Buckinghamshire and made her home with her parents in Dorset.  The practical difficulties of getting a boy to school from Dorset to the B Middle School, which is in Potton in Bedfordshire, and father lives there or nearby.   

17.	In my judgment, this court really must grapple with the realities of the position and that is a compelling reason for us having to entertain the appeal, and so I would grant permission.

18.	Now let me deal with the merits of that appeal.  The essence of the judgment of Deputy Judge Rowe, is encapsulated in her conclusion expressed in paragraph 54, when she said:

“For these reasons I come to the conclusion, as I say I am driven to the conclusion that more recently the mother has been taking steps really to frustrate the order made in Australia in July.  I see nothing which has significantly changed the position which was before the court in Australia.  I go back and make orders in relation to contact which reflect the agreement made by these parties and they know their son best.  I propose to make a fresh order in the terms of the orders agreed therefore by the parents so far as residence and contact are concerned, that is to say that [M] will in this country reside with his mother and have contact in accordance with the terms of the order of the judge in Australia in my trial bundle at paragraphs 1 to 2.”

19.	Paragraph 55:

“I am told that the school is about an hour from the mother’s brother which is where she is likely to have to move in short term at least to facilitate this school attendance.  The family will have to rally round and deal with transport issues and accommodation issues, that is the view taken by the court in Australia and that is the view also that I take.  If it turns out that there are any minor issues of tweaking that are needed in relation to contact by virtue of the distance between school and the brothers home, that is something the parties will have agree.  If they cannot agree about tweaking then they will have to return to court, but I propose to reinstate the order.  [M] should attend the B Middle School.  He should live with his mother.  He should have contact with his father in accordance with the order by the court in Australia.”

20.	She went on to make those directions and to say that if the parties cannot organise issues of residence and contact, which she urged, they would have to return to court.  Here were have, in effect, the judge enforcing the order made in Australia.  She directed herself in paragraph 45:

“I am asked by the father to enforce the Australian Order.  Although we have not had the time, neither side has sought to address me on the law given the acceptance that I have to deal with these matters anyway.  Quite simply, as a matter of law it seems to me that the Australian Order is not binding on this court and I am bound to make orders now that are in [M]’s best interests.  His welfare is this court’s paramount concern.  It does seem to me though that in the light of the recent Australian order, in a sprit of  comity I should respect that order, look at the basis upon which it was made and, at the very least, ask myself whether there has been anything significant that has changed since it was made that should lead this court on the information now before it to a different conclusion.”

21.	I do not see anything wrong in that approach to the problem. The difficulty may be whether, applying that approach, she has reached the correct decision.  She looked at the basis upon which the order was made.  If we examine that question and see how the matter came before the court in July, it is apparent from the judgment of HHJ Collier that he was taking the view that he should, as he said in paragraph 6, “make orders pending further order of this court, or a court in the United Kingdom with appropriate jurisdiction.”  In saying that in paragraph 7:

“I do not for one moment wish to be seen as saying that the parties should relitigate this matter in England. I am merely saying that the matter is for all practical intents and purposes passing beyond the jurisdiction of this court and there needs to be in place as best can be achieved a mechanism, in the event of dispute, that there is a clear and proper indication of where the matter needs to go to have the orders made.” 

22.	As I read his judgment, he is acknowledging that really once the child is back in this jurisdiction, this jurisdiction is rightly seized upon and this court should exercise its judgment and what is in the best interest of the boy.  In other words, his judgment was not cast in stone.  It was also necessary for Deputy Judge Rowe to analyse quite how the case was presented with reference to schooling.  The mother had indicated that she would live with her brother for an indeterminate period, the words he uses in paragraph 10; he noted that she hoped soon to obtain her own accommodation, and that she did not propose to stay with her brother as a long-term proposal.   He nonetheless had to deal with what seems to me some very unsatisfactory evidence about the geographical location of the school in Bedfordshire and the Uncle and Aunt in Buckinghamshire.  The mother’s evidence was that she thought the school was about an hour away; she says that estimate is based on knowing the location generally rather than the specific placement of the school (see paragraph 10).  

23.	In paragraph 13 it is recorded that it was put to her that the father’s school was only 30 or 40 minutes away.  She was unable to comment on that.  When the judge had to decide on this issue of schooling, his judgment was based upon, as it seems to me, two aspects.  One that the B Middle School enjoyed a better academic standard and state of achievement than the school proposed then by the mother, and secondly, that the advantages of being in the same school with the father outweighed the practical disadvantages of travel that the mother has relied in seeking to have the child attend school near her.   

24.	Now the reality is, as seems to be an agreed fact, that the distance by road between the Uncle’s home and the school is some 40 miles, which involves an 80-mile a day trip for this boy.  There is a dispute as to how long that journey would take, but I did not understand the father to differ that it would be at best be an hour journey, and worse during rush hour.  Moreover, no practical account is taken of the fact that the mother at the moment is in somewhat straightened financial circumstances.  She does not have her own car and she is on income support, and so practically there are formidable difficulties in this boy travelling that distance each day.  When I put to the father what his view was as to the effect of that on the well being of M, he accepted that it would not be in his interest if that continued indefinitely, and his answer is because the mother had indicated that her stay with her brother was of temporary duration, she would be perfectly easily able to relocate herself in close proximity to the B Middle School, as so as to make travel much less of a problem for M.

25.	Now, there are perhaps two difficulties in that position.  The one is that if, by contrast, the mother were to be permitted to live in Dorset with or near her parents and the boy attend a school in Dorset, he, the father, would have some ability to change his job and move closer to where the boy had his home.  I do not under estimate the difficulties of his moving; he has a good appointment and he has prospects of advancement at this school.  The fact remains that, on his own account, there are many vacancies for teachers of PE and it is not impossible for him to relocate.  

26.	The second, perhaps more formidable, difficulty in that approach -- and it is a difficulty that the Australian judge did not deal with and nor perhaps could he have been expected to have dealt with it -- is this:  that the family jurisdiction in this country at least, and many may think it a little unsatisfactory, is in essence that the courts first task is to decide with whom a child live and make a residence order accordingly, and that ordinarily a residence order should not be fettered with a condition that the parent who has that residence order be confined to a particular locality; the authority for that proposition, and there are many others to like effect, is Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 (see the judgment of Butler-Sloss  LJ, particularly at page 642).  

27.	That is the problem in this case, that to pick a school and work everything around the school perhaps put the cart before the horse.  In my judgment, the geographical distance between AC in Buckinghamshire and the B School in Potton, is by itself so deleterious to the welfare of this little boy that it should not be countenanced, and it would be wrong to require the mother to relocate closer to the school.  In my judgment, therefore, where Deputy Judge Rowe erred is in not sufficiently examining the basis upon which they schooling order was made, and in not sufficiently analysing the understandable deficiencies in the evidence which was adduced before the Australian Court.  If there was no technical change between the state of affairs that the mother live with her brother at AC in Buckinghamshire, but the boy attend the B School in Bedfordshire, the practical difficulties seem to me to frustrate the Australian judge’s decision.  

28.	That is compounded, if and when one has to deal with the situation where, as has happened now, the mother has in fact relocated to Dorset.  This has not been fully explored in the evidence.  On the one hand she says, and one sees the force of that case, that in the events which have happened in the escalating trouble between these parents, with the fraught conditions of which Deputy Judge Rowe spoke getting increasingly fraught day by day, court appearance after court appearance, she is reasonably entitled to seek some practical solution to her housing problem, because one bedroom in her brother’s house is hardly adequate, and that she is entitled to the emotional and financial support of her parents.  That is her case.  

29.	The father’s case, which has its force, is that the mother is simply frustrating the orders that have been made, in a determined effort to ensure that his contact is as difficult as possible and, if possible, reduced altogether, and he relies very heavily and understandably upon an observation made by Collier J in paragraph 20 of his judgment, where he said:

“To my mind also there is one other very significant reason why the father’s proposal is to be preferred.  The mother has told me that she does not propose to stay with her brother as a long-term proposal.  I make no secret of the fact that I would be concerned if the mother were permitted to choose the child’s schooling and have absolute say in this, that it would easier rather than harder for the mother to succumb to the temptation to move away from the father’s place of employment and make contact difficult.”

30.	Father says, with force, and in a view with which I have a degree of sympathy, “Now we have the proof of the pudding”; that is exactly what she has done.  But in my judgment this court has for this purpose to deal with the reality, and it is completely unrealistic to expect this boy to travel from Dorset to Bedfordshire to attend school, and it is on the authorities not permissible to make an order the effect of which is to impose a condition on her residence order that she reside within the vicinity of the school.  

31.	There is, moreover, contrary to the judge’s view, a second change which has been made the clearer by the fresh evidence that has been placed before us, and that is that M is showing increasing reluctance to see his father.  That was the position before her and she had some help from the CAFCASS officer, who sounded out the boy’s views.  The judge records that, in terms of his being anxious about seeing his father and does not wish to see him.  But the judge took account of the extended background, the evidence given in Australia by a Dr Potter in, I think 2004 and 2005, about M loving his father and about the general tenor of the strength of the boy’s wishes.  She took particular account of:

“… his use of the word ‘disappointed’ were I to order contact, and I agree with the CAFCASS officer that I think that was a telling word for him to use.  I certainly do not think his wishes and feelings are as stated by the CAFCASS officer.”

She undoubtedly from the transcript was getting a clear indication from the boy of his unwillingness to see his father.  

32.	The transcript is virtually useless because so much of it is incapable of being transcribed, because Miss Demery was inaudible.  It is impossible for us to capture the flavour of her evidence and fully to understand what the boy was saying to her, but there are many passages upon which Miss Lazarus, for the mother, relies, in which the boy was saying, fairly adamantly, that he did not wish to see his father.  The change of course is that when Deputy Judge Rowe's order came to be implemented on the following Sunday, there was the impasse with which Uncle and Aunt had to deal and it seems plain from that that the boy was not willing to join his father.  

33.	That led to further proceedings in this court.  Ryder J imposed a Penal Notice on the order of Deputy Judge Rowe.  He stood the matter over to be heard as it was by   McFarlane J. Comment has been made about the unsatisfactory state of the papers.  It is an understatement.  The papers are lamentably prepared in this case.  With difficulty, we have been able to obtain a transcript of the evidence that has been put before McFarlane J when he heard the case, it seems on 21st September.  I think that date must be correct because he refers to the order made by Thorpe LJ of 20 September.  

34.	MacFarlane J took evidence from the father and he heard the father.  He had perhaps, if I understand the chronology, heard Mr and Mrs W on an earlier occasion, probably 15 September.  We have an order made by him, dated 15 September, when he suspended the order of Deputy Judge Rowe QC until Thursday 21 September, and we have now a transcript of his judgment, at least of that day if not of 15 September.  In the light of Thorpe LJ’s direction, MacFarlane J could do very little other than agree with the stay imposed by Thorpe LJ and leave it to this court, as he put it, to sort it out.  The fact remains that the boy had been brought to court during the course of the proceedings before MacFarlane J; he, I am told, implored the mother to afford contact, he adjourned over the short adjournment for her to speak again to the boy, but the result was, and remains that M will not see his father.

35.	What then is the answer to this appeal?  I have endeavoured to explain that in my judgment, and particularly in the light of the changed circumstances, and the position as it is today, the judge was wrong not to take account of the difficulties in the geography between the mother’s home and school, and the problems that had already arisen with regard to contact.   

36.	In my judgment this appeal must be allowed, and the order directing the boy attend the B Middle School discharged.  

37.	The order that he resides with his mother prevails and his mother will have the responsibility to see that he resumes his education just as quickly as possible.  He has missed more than he should have done already.  So, I would allow the appeal to the extent that the Deputy Judge ordered in paragraph 5 that M attends that school and I would discharge paragraph 5.  

38.	The question then arises, what to do about contact.  It seems to me perfectly apparent that the contact ordered by the judge to reflect the contact envisaged by the Australian Court simply will not work at the moment, and to enforce it at the moment by this court may work adversely to the interests of M.  The only available option for this court is to suspend that order set out in paragraph 3 of the judgment under appeal, and direct that the matter return to the High Court as soon as possible for further directions and for a proper examination of this intractable problem. 

39.	I say intractable, but I sincerely hope it will not become intractable.  This mother has got to appreciate that contact with father is in the best interests of her son.  It may not be pleasant for either of them at this particular point in time.  He may kick and shout and he scream and he may wail, but in the longer term it is important that he resume his relationship with his father, because every psychiatrist that has ever given evidence to me on this question will have told me the serious consequences if that contact is denied.  This is a boy approaching his adolescence.  This is a boy approaching that anxious journey into adulthood. Adolescence is fraught with problems about identity: who am I?  Why am I what I am?  Within his psyche there will be a realisation that he is a product of his mother and his father, and that one half of his genetic make up comes from his mother, but equally and immutably, and nothing can change it, one half comes from his father; and if by chance his father is thought to be so horrible, so wicked, so nasty, that he should not see him, then there lurks within him one half of an equally nasty, horrible person, and that is why it is inimicable to any child to have contact denied.  

40.	This mother knows that because I am told that she has experience as a paralegal working in family matters, and so I perhaps preach unnecessarily.  But this is an opportunity, the last I hope when these parties will be before the Court of Appeal, but an opportunity when I can say, as a Lord Justice of Appeal, with much experience in this work, that the mother is possibly set upon a road for disaster for her son if she does not ensure that contact is satisfactorily resumed.  The father in his turn was told by Deputy Judge Rowe to be sensitive. I have cited passages from the judgment of Judge Collier upon which he relies as if every word was sacrosanct.  He should re-read it and read the criticisms that are made of him and his heavy, high-handed and perhaps bullying attitude, and ameliorate his opposition.  

41.	This case will not be easy without both these parents changing their positions from where they are today, on the one hand the mother saying “no contact” and on the other hand the father saying “contact as ordered by the Australian Judge”.  There has to be a fresh start to this, and if there is not the mother must be aware that the court’s firm determination will be to ensure contact, to make orders, as Ryder J did, imposing a Penal Notice.  Just read forward with little imagination: if she does not comply with it, what will happen? Father will be up seeking to commit her, the police will be called: who is losing out on that?  I can tell you very easily, M.  The mother must realise that the ultimate sanction is not only that she might be sent to prison, though that may be rare, but that orders could be made transferring the residence from the mother to the father.   He is not a complete ogre.  

42.	It is the clear finding of Judge Collier that the sooner this matter is resolved amicably, perhaps with professional help of counselling the better, but so far as this court is concerned there seems to be no order that can properly be made defining access, and in my judgment paragraph 3 should be suspended and that there should be such contact to M as may be agreed, with the heavy onus on the parties now to enter a fresh beginning, make a fresh start and start negotiating sensibly about it.  

43.	To that extent I would allow the appeal.

44.	LORD JUSTICE RICHARDS:  I agree.

45.	LORD JUSTICE WARD:  I envisage that the court will want to consider the extent to which there is a full report from CAFCASS.  It may even wish to consider the extent to which it would be appropriate, and perhaps in this case it would be appropriate, to invite the help of CAFCASS to represent M or for NYAS, the National Youth Advisory Service, I think, to appear as counsel, as a representative for M, to sound his wishes independently of each of you warring parents.

Order:  Application granted.