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Category Archives: private law

Terminating parental responsibility – the appeal

Re D (A Child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/315.html

 

In this case, the Court of Appeal were hearing father’s appeal against Baker J’s decision to use the power in s4(2A) of the Children Act 1989 that a father’s parental responsibility can be removed from him by order of the Court.

 

John Bolch over at Family Lore has done a good piece on this.

http://www.familylore.co.uk/2014/03/d-child-fathers-appeal-against-order.html

 

The legal power is

4(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.

 

The father in this case was not the most edifying man. He is serving a prison sentence for sexual offences against women. The mother, having ended that relationship wanted nothing to do with him, but from prison the father was making applications for contact with their child.

There are two big arguments in this case  (a) If that s4(2A) power exists, then there must be circumstances in which the Court can use that power, and why not in a case like this?   OR (b) the power in the Act is draconian AND discriminatory, since it presently allows for a mother to ask the Court to discharge father’s PR for bad behaviour, but a father can never do the same against the mother.

[It is for the latter reason that I find myself on father's side as a matter of law, although my sympathies in this case all lie with the mother]

 

The problem for dad’s team was that the nub of that argument, that s4(2A) is discriminatory to men has already been shot down by the European Court of Human Rights

 

The question of the differential treatment of married and unmarried fathers by the statutory scheme is not before this court for consideration. Neither mothers nor married fathers can have their parental responsibility removed. That was the issue in Smallwood v UK (29779/96) (1999) 27 EHRR CD 155, an admissibility decision of the Commission in which it was held that the difference in treatment between mothers, married and unmarried fathers in the context of the jurisdiction of the court to make an order which removes an unmarried father’s parental responsibility is not a violation of article 8 ECHR [the Convention] taken in conjunction with article 14. On that basis the father in this case was refused permission to appeal on the question of whether the differential treatment was proportionate and whether section 4(2A) CA 1989 was incompatible with the rights set out in articles 8 and 14 of the Convention.

 

Damn. So dad’s team had to take a different tack

 

 

  • The grounds of appeal upon which permission was granted are that:

 

 

 

i) the judge failed to distinguish Re P to have regard to the principles set out in the Human Rights Act 1998 [HRA 1998], the ACA 2002 and the changing social norms over the 18 years since Re P; 

ii) the judge failed to consider whether the mother had discharged the burden of proof so as to establish the allegation that the father was “a sexual recidivist”; and

iii) the judge failed to make a proportionate order or take into account the asserted policy consideration that applications of this kind should not be allowed to become “a weapon in the hands of a dissatisfied mother”.

 

[i.e that "there might be some cases in which it is proportionate and necessary to terminate father's PR but (a) they should be very very rare and (b) this isn't it"]

 

Having had to fight, as a result of Smallwood v UK, with one hand tied behind their back, it is not surprising that dad’s team did not succeed.

On the final point, the ‘this could open the floodgates’ one, the Court of Appeal archly point out that two such orders in 25 years doesn’t suggest that the family Courts are about to be besieged by s4(2A) applications.

 

The burden of proof thing is an unusual and intricate argument – in effect it is that the burden of proof falls on the person making the allegation (they have to prove it, the subject of the allegations doesn’t have to disprove it  – a concept that seems entirely lost in LASPO…).

These are the facts that Baker J found, having heard all of the evidence (the important thing here is that some of these findings were his own conclusion rather than mum making allegations and the Court finding them proven)

 

  • The second ground of appeal relates to the judge’s findings of fact and the value judgments he came to upon which he based his ultimate conclusion. So far as the former is concerned this court would have to be satisfied that the judge was plainly wrong in the factual determinations to which he came, that is that there is no objective basis for the same on the evidence that he heard and read, otherwise they will be immune from review. The judge had the benefit “of reading and hearing all of the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days …” (Re B above at [205]). This court will be very hesitant indeed to interfere in that process.

 

 

 

  • It is plain from the transcript that Baker J carefully considered the factual and opinion evidence in coming to his conclusions. It cannot be said that he was wrong to reject the expert evidence that he heard from the jointly instructed psychologist having found that his evidence was naive, complacent, unreliable and at times misleading. He made the following findings about the father:

 

 

 

i) the nature and extent of the facts associated with the father’s criminal convictions included penetrative sexual abuse, inciting a child to engage in penetrative sexual activity, engaging in sexual acts with a child, causing or inciting a child to engage in sexual activity and three sexual assaults; 

ii) he had vacillated over the years between accepting the truth of those facts and asserting his innocence and was presently again asserting that he had been wrongly convicted;

iii) his account of what he called a false confession was wholly unconvincing with the consequence that he had not satisfied the burden under section 11(2) of the Civil Evidence Act 1968 of proving that he had not committed the offences for which he was convicted;

iv) his persistent denials of the validity of the convictions meant that he had repeatedly lied to professionals and to the court (and by implication to his family including his son as that was the factual basis upon which he presented himself to the court);

v) he had lied when he denied giving a previous account to the respondent when he told her that he had been abused in the past by his brother;

vi) having regard to the Lucas direction which the judge gave himself, the father’s lies called into question his reliability as a witness (see R v Lucas [1981] QB 720).

 

  • On the facts that he found, the judge was entitled to conclude (at [51]) that:

 

 

“as he continues to deny his culpability for the devastating acts of abuse he perpetrated on the family, I think it highly unlikely that he appreciates the damage he has caused to every member of the family, or the danger of further damage should he have any further involvement with the family”

 

In this case, it was Baker J who made the finding that father was a sexual recidivist, and the argument was thus that mum (who benefited from the finding) hadn’t had the burden of proof in establishing it.  It would be fair to say that the Court of Appeal didn’t care for that submission.

 

  • It is superficial to say that in this case D’s father has not inflicted harm directly on his child and that therein lies a distinction with Re P which ought to have led to a different conclusion. D’s father inflicted devastating emotional harm on the whole family including D which he continues to deny. It is difficult to see how in that circumstance and in the absence of any other positive factors, the father can be said to be capable of exercising ‘with responsibility’ his parental rights, duties, powers, responsibilities and authority.

 

  • It is likewise wrong to say that the mother has failed to satisfy the burden of proof of facts relating to father’s alleged sexual recidivism. That is a submission that is becoming ever more prevalent in this court with the advent of parties who are not represented at first instance and who can be excused for not understanding the significance of either the burden or standard of proof. So the submission goes, if a party who has the benefit of a finding from the court has not been put to the obligation of proving it, what the court has done is to subtly reverse the burden of proof. I make it clear this is a distinct submission from one which calls into question whether someone has not had the benefit of procedural protections to which they are entitled.

 

  • Provided that procedural protections are identified and used by the court, the process of fact finding in family proceedings is quasi-inquisitorial. The welfare of a child may sometimes require a judge to make decisions about facts and/or value judgments that are not asked for by either party. A judge cannot shrink from doing so. That is his function. He must identify such questions and where necessary decide them. Although identified in relation to a different supervisory jurisdiction, the quasi-inquisitorial process to which I have referred was considered and approved in its use by the family courts in public law children proceedings and must as a matter of good practice be available to the same inquiry in private law children proceedings: In the Matter of W (A Child) [2013] EWCA Civ 1227 at [36]:

 

“Although it is conventional to speak of facts having to be proved on the balance of probabilities by the party who makes the allegation, proceedings under the 1989 Act are quasi-inquisitorial (quasi-inquisitorial in the classic sense that the court does not issue the process of its own motion). The judge has to decide whether sufficient facts exist to satisfy the threshold (the jurisdictional facts) whether or not the local authority or any other party agree. Furthermore, the basis upon which the threshold is satisfied is a matter for the judge, not the parties. To that end, if the judge directs that an issue be settled for determination, then absent an appeal, the issue will be tried whatever any party may think about that. As Pitchford LJ said in R (CJ) v Cardiff City Council [2012] 2 All ER:

[21] … The nature of the court’s enquiry under the 1989 Act was inquisitorial. To speak in terms of a burden of establishing precedent or jurisdictional fact was inappropriate.

[22] … I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong reason for departure from the common law rule which applies a burden to one or other of the parties … The court in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability.”

 

Interesting – the suggestion there is that if mum had alleged that father was a sexual recidivist, the burden of proof would be on her, but where as here, the Judge makes the finding of his own motion arising from the evidence heard, there is no burden of proof – it is just the STANDARD of proof that we are concerned with. Was it more likely than not to be the case, and the Court of Appeal saw no reason to deviate from this.  [It is such a narrow technical point that I don't see it coming up very often, but the Court of Appeal have slammed that door shut]

 

Of course, the sort of circumstances (Father injured a child, father is a sexual offender) found here in the two cases where PR was removed don’t come up all that often in private law, but they are rather more common in care proceedings – where of course the mother is represented, will have the powers of s4(2A) explained to her and might be under pressure from professionals to distance herself from father. Might we see that more often in care proceedings?

 

Equality of arms – D v K and B 2014

 

One of the principles of article 6 of the Human Rights Act (the right to fair trial) is the ‘equality of arms’ – in essence that there should be a level playing field. Of course, there isn’t always – in a big money divorce, the person who has the assets might well be paying for the better lawyer,  sometimes one party will go and get a QC and the other can’t afford it.  Equality of arms was something that concerned a lot of people when the legal aid reforms came in and established that a person making very grave allegations would have the opportunity to get free representation, whereas the person defending themselves against what might be false allegations was very unlikely to get the same treatment.

D v K and B 2014 brings that into sharp focus

http://www.familylawweek.co.uk/site.aspx?i=ed128264

1. An issue arises in private law proceedings concerning B who is three years old. A fact finding hearing has to take place. One of the many serious allegations made by the mother is that she was raped by the father in 2010. The allegation of rape would be central to the fact finding hearing and so a court conducting that hearing would have to decide whether the alleged rape took place. The Father denies that it did. That allegation is not the subject of criminal proceedings.

2. The mother has the benefit of legal aid. The father does not. His application for legal aid has been rejected. This judgment was given on 27th January 2014 with the intention that it should be referred to the Legal Aid Agency. I invited them to reconsider the father’s application for legal aid as a matter of urgency. At the most recent hearing on 12th March I was told that the application had been reconsidered and had been rejected again.

 

This does seem, to me, to be a case where there should be equality of arms – father’s case is not rejected because he is wealthy and can afford to pay, but because of the principle that the person defending the allegations is unlikely to get funding (you need the Legal Aid Agency to decide that it is exceptional and justified)

The Judge outlined why he considered that this was an exceptional case and why public funding would be justified

6. If ever there was exceptional private law litigation then this must be it. I say that for these reasons:

i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother’s allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event.  In March this issue was being investigated further.

ix) As to the position of the Guardian’s representative everything that I have said about the position of the judge applies in at least equal measure to the guardian’s solicitor if not more so. The guardian’s statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children’s solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child’s solicitor could be expected to conduct cross examination on behalf of this Father.

The final point is saying, in very careful terms, that in order for the truth to be determined about these allegations, mother and father would both have to give evidence. Father would be cross-examined by a barrister – a trained professional not emotionally connected to the case (and in this case, I note, a very good and skilful one, who sadly won’t be able to comment on this case).  Mother, however, would be cross-examined by father – leaving him at a disadvantage because there’s not equality of arms, but also making it much more of an ordeal for both of them.

You simply can’t cross-examine on an allegation like this without putting to the mother that her allegations aren’t true, that she has made them up, that they are malicious. You can’t do it without going into some detail. You can do that as gently and sensitively as you can – it is still not a nice experience. If the person asking the questions is the subject of the allegations, then it is ghastly for everyone.  This is why in crime, it isn’t possible to represent yourself on some criminal charges (such as sexual offences)

s34 Youth Justice and Criminal Evidence Act 1999

34 Complainants in proceedings for sexual offences.

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

There were damn good reasons for that – and I’d suggest that the same good reasons mean that you want to avoid it if at all possible in family cases too.

Obviously it can’t be that the lawyer brought in to represent the child can do this on father’s behalf – the father isn’t his client. That’s not someone frankly and fearlessly fighting his case for him.

Could the Judge do it? That made the Judge uneasy, and rightly so.

7. I am now going to quote from H v L & R. A similar issue arose in H v L & R [2006] EWHC 3099 (Fam) and Wood J said this at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”

8. I respectfully agree with Wood J and therefore, in January, asked the Legal Aid Agency to think again. As matters now stand, it seems highly unlikely that legal aid will be granted.

Sadly, you may detect from the final sentence that the Judge is not optimistic that this will work. Legal Aid Agency and ‘see reason’ aren’t concepts that go hand in hand.

Donating your… ahem… time

 

The High Court have recently dealt with another case (there have been a lot, relatively speaking) where a man (DB) fathered a child for two women in a relationship and later wanted to have more contact than the two mothers had in mind.

 One of the contested issues in the case was whether the man had (as he said) offered to father a child to be raised by the two women but play a part in the child’s life, or whether (as both of the mothers  said) he was basically being asked for nothing but his biological contribution.

 It was common ground that the child had been conceived in the usual way, rather than by artificial insemination, the argument was about whether the common understanding was that this was where DB’s role ended.

 

Re SAB (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/384.html

 

One of the big lessons from this (as indeed from most of the previous cases about this sort of situation) is that if you are embarking on a plan of conception that is something out of the ordinary, firstly make sure that all of the adults involved have exactly the same understanding and thoughts about what is intended, and secondly get something down on paper that reflects that.

 

This case was complicated further by the fact that the father DB, and the biological mother AB, had previously had a romantic and sexual relationship, which was over by the time of the conception of the child.

 

The tension that this must have brought to bear on the whole dynamic probably wasn’t helped when DB engaged in some ‘sexting’ and sent a photograph of his  [Menswear Department]  in a mobile phone text. This text and image ended up being received by AB. 

 

DB said later that it was meant to go to an entirely different woman, hopefully one who was a willing or keen recipient of such image. In fact, he had never sent it to AB and wasn’t sure how it had ever reached her.

 

One can appreciate how AB, and the other mother CB might have misconstrued his intentions there.  The Court accepted that this was entirely an accident and not an attempt to rekindle his relationship with AB or cause tension between her and her partner CB.

 

In any event, what happened was that from going from a voluntary arrangement whereby the father was seeing his child in the first year, contact was completely ended, and the Court needed to become involved.

 

The tensions, already high, were not helped by a long paragraph in a statement filed by the father   – this, whatever it was, ramped up the temperature so much that it led AB to express the feeling that she hated him. 

 

19. Throughout this hearing, which has now spanned three days, I have, frankly, been puzzled as to the intensity of the opposition to contact now, when, until a year ago, it was happening relatively smoothly and given that it was accepted that DB had not, himself, sent or caused the obscene photograph to be sent. It was very difficult to discern any other clear explanation in the facts and circumstances of this case as to why attitudes now appear to be so entrenched

  1. I have read, of course, the third statement of DB, originally signed and dated in November 2013. That included at paragraph 9 a paragraph of some length, and I have been shocked at what DB thought it appropriate to state in that paragraph. Nothing, however, had been said about it throughout the first two and a half days of this hearing. Almost at the very end, whilst she was asking some questions of the child’s guardian, Mrs Susan Scott, this morning, AB referred to her “hatred” for DB. Apparently she had used the word “hatred” in some meeting or meetings with Mrs Scott, but it was certainly the first time a word of such intensity and violent emotion had been used within the courtroom. I enquired of AB why she felt such “hatred” and it emerged that it stemmed from what he had chosen to say in paragraph 9 of his first version of that statement.
  1. As a result, that statement has been edited so as to remove altogether the highly offensive parts of paragraph 9, and a fresh version, with a much shorter paragraph 9, has been signed by DB today, 23rd January 2014. All the copies in the courtroom of the earlier version with the longer paragraph 9 have all been returned to Mr Shelton, counsel for DB, who will ensure that they are totally destroyed. I am not going to make any reference whatsoever to the offensive parts of paragraph 9. But it tragically appears that AB expresses a feeling of hatred toward somebody for whom she previously felt friendship and affection, in considerable measure because of his foolish lack of judgment in saying such unnecessary, deeply offensive and highly intimate things. As I observed earlier this afternoon, however, it would be very wrong for decisions to be made affecting the entire childhood and, indeed, lifetime of this tiny, vulnerable child on the basis of one foolish misjudgment of that kind.

 

I rather like the pragmatic solution that the Judge hit upon for this. Rather akin to Basil Fawlty dealing with Bernard Cribbins’ flawed Spanish omelette  (“There, I’ve torn it up, you’ll never see it again”).  I think there’s a line in one of A P Herbert’s imaginary judgments about a judgment given by a High Court judge having been locked in a trunk, secured with chains and thrown into the depths of the ocean so that nobody need ever refer to it again.

 

As ever, the Bard puts it well

 

“I’ll break my staff. Bury it certain fathoms in the earth. And deeper than did ever plummet sound. I’ll drown my book”

 

[Although, hands up anyone who is NOT insanely curious about what was said in paragraph nine. The guess would be that rather than discussing the facts or issues or principles, he said something that was sticking the boot in and personal and offensive to AB. This is what lawyers sometimes call "playing the man and not the ball"  - a term borrowed from football, where the intention is not in a tackle to get the football but just to hurt the other person] 

 

On the whole discord about whether father was a “sperm donor who would walk away” or an intention to father a child and play some role in that child’s life, the Judge said this

 

  1. There is, of course, one major conflict of fact in this case, namely, whether or not it was agreed that the father would simply be a “sperm donor” and then “walk away” or whether, as the father says, there was a joint intention to conceive a child who, it was anticipated, would have some relationship with both his parents. I can only resolve that conflict on what lawyers call a balance of probability. I am not at all persuaded on a balance of probability that DB did agree, as is alleged, that he would merely be a sperm donor. That does not seem to me to fit either his personality or his personal history. As I have said, his situation was that it had been a source of sadness and regret to him that he had been unable to have a child or children throughout a marriage of some length due to infertility on the part of his wife. It was also a source of the utmost regret and guilt to him that he had never had a proper relationship with his one daughter, L. It seems to me highly unlikely that he would have been willing on the one hand to father a child and on the other hand to completely “walk away”.
  1. Further, there are a number of facts in the case which do not seem consistent with the notion that, having had intercourse and conceived a child, he would then “walk away”. Indeed, it is agreed that in September 2011 he and the mother went on a camping weekend together in the Yorkshire Dales where the two of them shared a tent. They did not have sexual intercourse on that occasion but nevertheless the circumstances were obviously ones of some intimacy.
  1. As I have said, after the birth of S the father was permitted to see S quite regularly and amicably. So there was certainly no concept of “walking away” in play for an appreciable period of time after the birth of S. Further, in such texts as are available, nowhere is there an assertion that he had agreed to “walk away”. As I have already said, some of the texts are, indeed, quite affectionate; and even where the mother did ask for some time and space away from him, she did not put that in terms that he had agreed always simply to be a sperm donor and walk away.
  1. It may be that in this case there was, as so often in these sorts of situations, a lack of clarity and understanding between them. It may very well be that A and C, in the spring and early summer 2011, were looking for a mere “sperm donor” as RS might, indeed, have been. But I cannot accept that when DB had intercourse that night he had, himself, agreed that his role was simply to be that of a sperm donor.
  1. In any event, as authority of the Court of Appeal makes clear, even somebody who has agreed to be a mere “sperm donor”, unless anonymous, should not necessarily be excluded from the life of the resulting child. However, it is not necessary to wrap up my decision in this case by reference to authority. It is absolutely clear that cases of this kind are highly fact specific. It is absolutely clear that there is only one legal principle in play, namely, that the welfare of the child concerned must be the paramount consideration.

 

 

It is clear that feelings were running high on this one, and the Judge makes some very helpful remarks, applicable to other cases about what the role of the Court is in this regard.

 

  1. The principal reasons that A and C advance against any contact are these. First, A, in particular, clearly has a very strong view as to parental autonomy, and it is her view that she and C (who also has parental responsibility for S) alone know what is best for their child and that they, and they alone, should decide. Whilst I have some appreciation of that point of view, it is, of course, not the law, and it is precisely because an individual parent, or in this case two mothers, do not have that degree of autonomy that courts in the end do have to decide the outcome of cases such as this.
  1. Next, they stress that from the outset the agreement was that DB would simply be a sperm donor and walk away. I have already explained that I cannot accept that there was agreement to that effect. It may have been their hope and expectation, but it certainly was not that of DB.
  1. Next, A in particular refers to the intensity of her feelings now in relation to DB. As I have said, earlier today she used the word “hatred”, and her overall position is that it could not be in the best interests of S to be brought up in a situation of conflict between the adults.
  1. Allied to that is a similar, but discretely different, point, namely, that in any event she, or they, cannot bring themselves to promote the image of DB as the father and present him in a positive light.
  1. So their overall position is that this would simply be a situation of such stress and intensity of emotions that they would inevitably impact upon S and be damaging to him.
  1. I do, of course, appreciate and understand all those arguments. They are often deployed in situations where there is conflict and disagreement as to contact. But the argument and consideration the other way is the real benefits that S may gain throughout his childhood and, indeed, into his adult life from having proper knowledge of, and interaction with, and some relationship with his father.
  1. Of course, at this moment, when he is aged 20 months and a mere toddler, none of this is immediately apparent. No one could suggest that S is suffering at this moment from the absence of his father from his life. But it is in infancy that the seeds should be laid for slowly developing a relationship in the most natural of ways as the child grows up. The position of the mothers is that S can, of course, see his father when he is older if he wants to do so. But that would not happen in that spontaneous way, at any rate for many years, unless he has grown up with knowledge of, and some relationship with, his father.

 

 

The Judge opened his judgment with this, but I have moved it for my purposes to the end

 

  1. In a letter written as long ago as 23rd August 2013 the mothers forecast that:

“Unfortunately, it is becoming increasingly clear to ourselves that this awful situation will just have to play its course within the court system.”

 

That is what has happened and, despite repeated attempts and encouragement on my part and my affording ample time and opportunities in which to do so, the parties have, unfortunately, not been able to narrow their differences and agree an outcome. Nonetheless, it is very clear that the three adults involved in this case are all, if I may say so, very worthy, caring and decent people, and it is a matter of the utmost sadness that there is currently so great a rift between them.

 True enough. Sad when three decent people end up in such a  situation.

So, three golden lessons to avoid it happening to you / your client

 

  1. Make sure you are all on the same page, and have it written down, before embarking on an unorthodox conception

 

  1. When you write a statement and you play the man and not the ball, bear in mind that this might cause significant problems in due course, and if it has really inflamed things too much, an offer to remove the offensive remarks is not a bad idea. In fact, just don’t play the man and not the ball. It never works.

 

  1. If you think that hell hath no fury like a woman scorned, imagine taking two irate mothers on at once…

 

Get it in writing, always get it in writing.

 

Or as Sam Goldwyn didn’t say  “A verbal contract isn’t worth the paper it’s written on”

After ten years of war, peace breaks out

The High Court decision in Re J and K (Children : Private Law) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/330.html

Another judgment from Pauffley J – not remarkable on the facts, nor indeed on the law, and I suspect it is one that might not have been published were it not for the transparency guidance. But it is another good judgment, and remarkable in that a set of private law litigation, which began in 2003 and involved 24 court hearings finally ended with agreement.

This opening is worth reading, for a start

This private law dispute demonstrates a number of phenomena. Firstly, that it is sometimes possible to achieve real and substantial progress as the result of the hearing itself. Secondly, that there can be incalculable benefits from the simple exercise of parents giving evidence and, just as importantly, listening to the evidence of others. Thirdly, that proceedings which begin in an atmosphere of adversity may swiftly evolve into an exercise in constructive collaboration. Fourthly, that protracted litigation over children is profoundly harmful to everyone concerned. And fifthly, that the involvement of skilled and insightful professionals – in this instance Miss Wiley, Ms Bushell and Mr Kirkwood – has immeasurable advantages in (a) achieving a better understanding of the genesis of past problems and (b) assisting parents to an infinitely more constructive way of working together for the benefit of their children.

The Judge tried, in this case, to understand, and describe why it was that two loving, caring and kind parents had ended up in a horribly conflicted and contentious bout of litigation that lasted so long. It is worth a read, if you advise parents in this position, or if you are finding yourself in this position. It is possible to get sucked into a fight that neither side really intended – there doesn’t have to be a good guy and a bad guy in family cases. Sometimes everyone is a decent person and a good parent, and a wrong turning just gets made and the case escalates into something nobody wanted.

Why did the problems arise?

    1. So why did things go so badly wrong for this couple such that there was serious and persistent disagreement even although there has never been a valid welfare argument against ongoing contact? Peeling away the layers of mistrust and antipathy has been both painful for the parents but also, I would say, illuminating. In addition, it has been, as Mr Kirkwood so rightly says, cathartic. And the best demonstration of that is the scene he witnessed at lunch time on Wednesday when all the family members were together in the coffee shop, standing around and chatting.

 

    1. To revert to the reasons for the difficulties, I would identify the following as having contributed to the atmosphere of hostility. The twins were alarmingly small when delivered – less than 3 lbs each – and had to stay in hospital for 8 weeks. Their mother had been ill herself in the period prior to their birth. Thereafter, the boys were not physically robust for a couple of years. The mother, entirely understandably, was intensely protective of them as was their closely involved maternal grandmother. It must have been a time of enormous stress and anxiety for the whole family, particularly the mother whose attachment to the babies, of necessity, was of the most concentrated kind.

 

    1. The father felt excluded to an extent though he would say he always did his best to support the mother and his children. During the twins’ first year, the long standing relationship between the parents ended. Doubtless there was disappointment and a sense of loss on both sides. Inevitably, the maternal grandmother would not have been inclined to give the father ‘a good press’ at that time or indeed in the years that followed. Clearly, she had views about his actions in the earliest months of the boys’ lives which were highly unflattering and, I would have to say, very hurtful to him.

 

    1. In the years that followed, the father’s applications to court – his efforts to ensure he played a proper fatherly role in the boys’ lives – were seen as “attacks” upon the mother. Doubtless she was strongly encouraged, by successive CAFCASS officers and judges, to play her part in ensuring the smooth progress of a developing contact routine. Her husband and the children’s father are very different individuals. By trying to do right by her husband, there must have been times when she did wrong by the children’s father. She was criticised for the way in which contact handovers were undertaken at the children’s schools. She complained to various bodies when she believed her behaviour had been wrongly reported as having been confrontational. When a suggestion was made by Cafcass that her actions may have had a psychological or psychiatric component requiring of expert advice, she responded defensively. There was, as it is all too easy to see now, a downward spiral of alarming dimensions.

 

    1. If there was one thing that the parents seemingly failed to do for all of the years they were in dispute, it was that they did not consider the impact upon the other – and the children themselves – of their actions. A prime example of that lack of empathy and its harmful impact was the regularly repeated performance at the children’s schools on a Friday afternoon when the handover was effected. It was easily done; and could, with the benefit of hindsight, have been so straightforwardly avoided as the mother conceded in evidence.

 

    1. For his part, I have no doubt but that the father had not considered the repercussions for the mother and her very respectable, well ordered and closely governed family of repeated court appearances. I am sure they became almost too much for her to bear; and the impact upon the children was a sense that their mother was under attack. They are and were both incredibly loyal to and, said the mother’s husband, fiercely protective of her. He could see though that the boys would have been far better off had they not been inappropriately exposed to the detail of the adults’ dispute.

 

  1. I am hopeful, very hopeful, that for the future similar mistakes will not be made; and that, as Ms Bushell suggested, the mother and her husband will be able to parent the boys authoritatively. There is very little which frightens children more than an absence of appropriate parental guidance and firm boundaries about the things in life which matter most.

I think that it is also worth drawing specific attention to the praise that the Judge gave to Ms Bushell, who acted as the McKenzie Friend for the father.  McKenzie Friends are a bit like Environment Ministers – you only usually know who they are when they are getting told off, but the reality is that 99% of the time they are silently getting on with it and doing very good work.  I have been lucky enough, in the writing of this blog, to come into contact with some very good and thoughful McKenzie Friends, and it is a role that requires all of the qualities praised here by the Judge.

So, it is nice to see a case that recognises that McKenzie Friends can be a powerful force for good and common sense.  (It is also worth noting that the mother’s counsel was acting pro bono – which is a way of masking by clever use of Latin to your clerks and bank manager that you are doing  work for free)

    1. The very last matter for comment is the extent to which each of the parents has been assisted by highly skilled, insightful and intuitive representatives.

 

    1. Ms Bushell has acted as the father’s McKenzie friend. Her background is in social work; her experience of the family justice system as a former guardian is extensive. I had no problem in agreeing that she should perform the role of speaking for the father, asking questions of him and on his behalf. Ms Bushell explained that the father is a shy man who would have encountered considerable difficulty if left to conduct the advocacy on his own. Having seen him give evidence, I agree wholeheartedly with that assessment. He is also, unsurprisingly given what he had lived through, extremely emotional, and would not have managed the advocacy task unaided.

 

    1. Miss Wiley is a member of the Bar with very considerable experience of high conflict private law disputes as well public law Children Act and inherent jurisdiction cases. She enjoys a reputation, deservedly, for diligence, economy, realism and innovative thought. She responded with immense generosity and in the very best traditions of the Bar when she accepted the invitation to act pro bono for the mother. Minor adjustments were made to the court’s sitting time on Wednesday to accommodate another one of her professional commitments in the High Court. Miss Wiley’s questions of her own client as well as of the father demonstrated just how well she understands the dynamics of a dispute of this kind. Her wisdom and emotional intelligence played a very large part in achieving so pleasing an outcome – not just as to the order itself but more importantly as to the shifts in attitude.

 

  1. Both parents were fortunate indeed for the professionalism and legal assistance provided by each of their ‘representatives.’ But of greater significance still, it seems to me, they were in the hands of individuals unafraid to show kindness, generosity and with a desire to help others.

 

X-box mother – the judgment

 

You may have read about the children who in private law proceedings were taken away from their mother and placed with their father, the headline being that she was found to be too permissive, had spent too much time in bed and the children had spent too much time playing on their X-box. It was on Radio 5 this morning, in quite a balanced way, and in the Telegraph yesterday, here.

http://www.telegraph.co.uk/news/uknews/law-and-order/10643643/Mother-loses-custody-battle-over-permissive-parenting-style.html

You will see from that account that the children were removed from the mother because of her ‘permissive attitude towards parenting’ and because she was letting the children spend too much time playing on their X-boxes. To be fair to the Telegraph reporting, it  does quote quite a lot from the judgment AND bothers to ask a family lawyer to provide some context as to the circumstances in which the Courts change residence, so it isn’t actually a bad report of the case.  It  at least makes an effort to get some of the facts and to understand the principles. Not something that’s always true of press reports on family cases. cough.

 

But, if you believe that these children were taken away from mother and placed with father because she was a bit slack with discipline and let the children play on their X-boxes too much, well in the words of Ben Goldacre “I’m afraid you’ll find its a bit more complicated than that”

In these days of transparency, we can see the judgment itself, here

RS v SS 2013  http://www.bailii.org/ew/cases/EWHC/Fam/2013/B33.html

And again, to be fair to the press reports, there is mention in there of X-Boxes, but rather more in the context of the mother appearing to be depressed, of withdrawing from the care of the children and the children being left to their own devices (pardon the pun).   One of the things that you pick up is that even from the Judge’s conclusions and findings that are set out below, there’s far more content than could comfortably fit into a newspaper article, and it is not a great surprise that one or two elements of the raft of issues were the ones that were highlighted.  For reasons of space, and pace, and hooks and drama, newspaper reports of family Court decisions tend to be flattened out and compressed and you can form a different impression than when you read the whole case.  That’s not necessarily the fault of the reporters – even a short judgment is dense, packed with concepts and long. It is something that we are going to encounter more and more as more judgments get published, but at least now readers can actually turn to see for themselves what the Judge actually did. [The X-box paragraph is 107]

FINDINGS IN RELATION TO THE PARENTS

    1. As must be clear from some of the findings that I have rehearsed along the way in this judgment, I found the father to be an honest witness, and, where the parents’ evidence differed, I undoubtedly preferred his evidence to that of the mother. His frustration and distress at this long-standing situation were palpable during his oral evidence. He has been tenacious to the extent of being dogged in his pursuit of a relationship with his sons. I do not criticise him for his tenacity. Many fathers would have given up by now. He has, in my view, demonstrated far better insight into the needs of his teenage and pre-teenage boys, for example, around issues of guidance and boundaries, than the mother. Their parenting styles are very different. He is much more in favour of structure, boundaries and discipline, and I can understand why the boys might baulk at that, given what I consider to have been the very permissive atmosphere in which they have lived at home. He is totally committed to his sons. He has given his proposals a great deal of thought, and I was impressed with the breadth of the proposals and their depth. I was impressed with how he said he would deal with difficulties, for example, if either of the boys ran away. His analysis of what he saw facing the boys if they stayed with their mother was insightful.

 

    1. My only minor criticism of him – and I stress that it is minor – is that he may sometimes have handled situations somewhat maladroitly or clumsily in the past, for example the knocking repeatedly at the door. But he did, I stress, take advice when the Guardian spoke to him. I recognise also that he was between a rock and a hard place. On the one hand, his tenacity was alienating the boys further but, on the other hand, if he did not attend with the tenacity he did, no doubt it would have been represented to the boys by their mother that he did not care about them. I make a minor criticism that he turned up on 8th December with the whole family. My intention had been that it would just be him and his parents, so that he could have one-to-one time with his boys, but it is a minor criticism. As I have said, he has frequently been between a rock and a hard place and cannot do right whichever way he goes. The boys found it embarrassing his attending at their schools, but the court had endorsed that and, as I said, if he did not attend, he would be equally culpable in their eyes.

 

    1. So, overall, I consider that, as I have said, he has a good understanding of what these boys need and he is, in my judgment, up to the challenges that a change of residence would entail. I consider he has extensive support not only from his partner but also from the paternal extended family. I have no doubt that they will give him as much support as they can bring.

 

    1. I will turn now to my finding about the mother. I found the mother to be a very angry and wilful woman. Her hated of the father is almost pathological. In my judgment, this is likely to have its origins in the circumstances of the breakdown of their marriage: the father leaving when CD was but a few weeks’ old, and her belief that the father had already begun an affair with SB. That has been fuelled, in my judgment, by financial issues, in particular the mother’s assertion, which has not been tested in these proceedings, that the father walked away with all the funds obtained by re-mortgaging the marital home. In her oral evidence, she accused him of adultery and of fraud on her. The years have done nothing to abate this anger. I consider that the fact that the father has made a new life, when she does not appear to have really moved on, has further fired her up. She also asserts that he has years of unpaid maintenance and, again, this is simply an allegation which was not pursued in evidence. To cap it all, from her point of view, the father has now had the nerve to apply for a change of residence. So preoccupied is she with her own sense of grievance that she completely overlooks the effect of her behaviour on her children. In my judgment, she has prioritised her own needs and feelings at the expense of the needs of her children. That is not to say that she does not love her children, I have no doubt her does, although I find her love to have something of a possessive quality about it.

 

    1. A key example, a glaring example of her prioritising her own needs was the parents’ evening when her behaviour was petty, childish and petulant. She has done nothing to shield the children from the fallout, rather, the converse. She has consistently and repeatedly put them in the centre of this dispute and has used them, or their contact, as a weapon against the father. In my view, her anger is always ready to spill over into uncontrollable rage at the slightest perceived provocation. This was clearly demonstrated by the voicemails. I am quite satisfied that, contrary to her denials, there have been numerous occasions when the father has been exposed to outbursts like these. I reject her evidence that the children have not been exposed to such outbursts other than during the September 2012 phone call, which led to the child protection referral.

 

    1. In my judgment, she has either been untruthful in her evidence when she says that she has done everything to promote contact, or she is in denial about the concerns. Her evidence was characterised by denial and minimising, and she showed no insight into the harm she has caused the boys. Indeed, I found her complacent about the educational issues and that she minimised the concerns about lateness, homework and general progress. I agree with the Guardian that she has not got to the point where she can acknowledge that anything is wrong, and it is difficult to see, in those circumstances, how a change can be effected. It is sometimes referred to as the pre-contemplation stage of change.

 

    1. I consider it also to be quite likely that she may be depressed to a greater or lesser degree. I accept the evidence of AB, as related to CH, that she does spend hours under the duvet, on the phone or using her iPad, and that the children are left to their own devices. It also seems to me to be likely, from what the father and AB said, that they are spending a lot of time playing on their own on their Xboxes. I cannot imagine why AB would say such things to CH unless they were true, given his loyalty to his mother. As I said, they tie in with father’s perception of the situation. I consider, in fact, that it might have been very helpful to have had a psychological assessment of the mother. I agree entirely with the Guardian that the children have done what so frequently happens in such a dispute: to remove themselves from the conflict which is painful and distressing to them, they have firmly aligned themselves with one side, and that is always likely to be the primary carer who is providing for their day-to-day material and emotional needs, and rejected the other parent. This is their attempt at self-protection, and in that view I am at one with the Guardian.

 

    1. This is, however, in my view, a profoundly unhelpful coping mechanism from the point of view of their own emotional development. A child should not be forced to choose one parent over the other. Further, in my judgment, by all her sayings and doings, the mother has exhibited, with capital letters, her negative feelings for the father, which have been adopted wholesale by the children and particularly CD, who has not got the same pre-existing link with his father. The children have been wholly inappropriately drawn into the court proceedings. They have been allowed to read the report of BH, and their statements to BH and indeed to me make this absolutely clear. They talked to me about the meal with their father and the grandparents being a biased test and about seeing the grandparents as strengthening the father’s case. They talk in the language of court proceedings and tactics. I note that AB said to the Guardian: “He is tactically lying in court. Technically he is harassing us”. As I have said, it is quite plain that the mother has exposed to them to the details of the court proceedings. Because their information has come solely from her, they have a wholly distorted view of what is going on, and lay the blame at their father for their discomfort at having been involved in these proceedings for many months and having to be interviewed by different people. That is because, as I have said, they have been presented with a wholly distorted picture.

 

    1. The mother is a powerful personality. She presents as tough and somewhat arrogant. She seemed to me to show no regret for or insight into her behaviour in her evidence. Her expressions of regret, for example, for the voicemail messages and other incidents, referring to them as “not being an ideal situation”, I found to be half-hearted and unconvincing. I considered the regret related more to the fact that they showed her in a bad light. I agree that in her evidence she repeatedly sought to deflect the question, and at times was argumentative. At other times her evidence was self-justifying and minimising. There was not really a chink in the armour until she showed some signs of distress right at the end. Whether and how far her face to the world is a defence mechanism is hard to say. I consider another explanation for her behaviour may well also be her fear that she will lose her children, who are the central focus of her life. I note that in the father’s position statement, made in March of this year, he reports that AB said that his mother was apparently worried about losing them. I do not consider that she understands the importance of a relationship with both parents for a child’s healthy, emotional development.

 

    1. The mother has failed also, in my judgment, to meet the children’s needs in other important respects. She has, in my judgment, consistently failed to meet their educational needs and therefore risks compromising in particular AB’s educational prospects. It is likely that CD would be in the same situation as he grew older. I consider that she does have a very permissive style of parenting, and I accept the father’s evidence that she is more like a friend than a parent. I am satisfied that there is a failure to provide proper guidance and boundaries essential for the social and emotional development of these pre-adolescent and adolescent boys.

 

    1. Further, I have real concerns about her as a role model. I agree with the Guardian that she turns on anyone who challenges her or does not seem to agree with her. Examples are the Guardian herself and CH. She has effectively said that they are lying or have been lying. She was going to change AB’s school after the referral, despite his being settled at the school and it being a good school. I consider that these attitudes are picked up by the boys, especially AB. I consider that AB was reflecting the mother’s belief when he referred to CH as a liar when he saw me, and I find that their hostility to BH has been largely due to their following the example provided by the mother. I note her evidence that she did have the beginnings of a relationship with them when she first met them, but then the door was firmly closed. I find the mother allowed the boys to be profoundly disrespectful to both the father and BH when she did not take them to task for poking them both with the crutch from the cab in August of this year. On other occasions the father has reported the boys shouting abuse to him when he attended contact, and in April holding up a sign telling the father “I’ve told you a million times to fuck off. Go away you gay bastard”. This behaviour went unchecked by the mother. In fact, so far as the April incident is concerned, the mother was challenged by the father, and laughed. This lack of respect for the father and other adults is profoundly unhelpful to these boys, both now and in later life, for example, in a job situation or when they are in disagreement with anyone in authority. Further, the mother has no respect or regard for the father as a father.

 

    1. I am sad to come to the conclusion that I find on all these fronts this mother has significantly failed these boys. Their views across the board faithfully reflect hers. Their repeated complaints of being dragged through the courts by the father are a precise echo of the mother’s own words. Any decision I make has to have their welfare as my paramount concern, and I have to apply the welfare checklist set out in section 1(3) of the Children Act. I have to consider first of all, the boys’ wishes and feelings. In this regard I have been referred to some helpful case law as to how to approach children’s expressed wishes and feelings in a situation where there has been alienation. In particular I have been referred to the case of Re S [2010] EWHC 192, a decision of His Honour Judge Bellamy sitting as a Deputy High Court judge. In the headnote to the case at (2) it states:

 

“Section 1(3)(a) of the Children Act 1989 did not permit the court to pay no regard to the clearly and consistently expressed wishes and feelings of a child, but such wishes and feelings were to be assessed in the light of his age and understanding, in particular the impact of alienation upon the reliability of the child’s wishes and feelings, and some modest signs that his expressed views might not in fact reflect his true feelings were matters to be taken into account when assessing the weight to be attached to his expressed wishes and feelings.”

    1. At para.69 of the judgment, the learned judge said this:

 

“S’s wishes and feelings must be assessed in accordance with his age and understanding. It is here that the assessment becomes more difficult. I have found that S has become alienated from his father. S has said that his father is a ‘monster’ and that he ‘hates’ him. It is clear from Dr. W’s evidence that such behaviour fits within the pattern of behaviour of children who have become alienated from their non-resident parent. In his report of 18th July 2008 Dr. W was very clear. He said that

‘It is also important for both parents and for all professionals working with the child to recognise that the child’s expressed wishes and feelings are irrational and should form no part in the Court’s decision making.’

70. The law requires that the court should take account of S’s wishes and feelings. It would be wrong, therefore, for me to pay no regard at all to the views which S has so clearly and consistently expressed. The Act, UNCRC and case law all emphasise the importance of listening to and respecting the wishes of the child. As a general proposition I accept that the older the child the greater the respect that should be accorded to his or her wishes and feelings. As Butler-Sloss LJ said in re S… a case involving two children aged 13 and 11,

‘Nobody should dictate to children of this age, because one is dealing with their emotions, their lives and they are not packages to be moved around. They are people entitled to be treated with respect.’

I cannot and do not ignore S’s expressed wishes and feelings. However, in the light of Dr. W’s evidence, it would be equally inappropriate for me to proceed on the basis that those expressed wishes and feelings should necessarily be taken at face value. They need to be assessed in the light of S’s age and understanding. The impact of alienation upon the reliability of those wishes and feelings and the signs (albeit modest) that they may not in fact reflect his true feelings, are matters to be taken into account when assessing the weight to be attached to them.”

    1. That judgment was expressly approved in the more recent Court of Appeal decision of Re A [2013] EWCA (Civ) 1104. At para.68, Lord Justice McFarlane said this:

 

“The evaluation of the weight to be given to the expressed wishes and feelings of a teenage child in situations where the parent with care is intractably hostile to contact is obviously not a straightforward matter, no matter how consistently or firmly those wishes are expressed. In this context, the decision of HHJ Bellamy in Re S… provides a good illustration.”

    1. I take into account all those observations in my evaluation of the wishes and feelings of the children. I have very much at the forefront of my mind that I am dealing with two young men, aged 14 and 11 respectively. Their expressed wishes and feelings have consistently been not to see or have a relationship with their father. Indeed, as the Guardian says, their views appear to have hardened over time, and I note the penultimate report of the Guardian as to how AB referred to his father. I have to evaluate how reliable those expressed wishes and feelings are.

 

    1. It is a consistent theme throughout all the reports of BH and her predecessor from CAFCASS that the wishes and feelings expressed are a result of the mother’s negative influence and/or are derived from loyalties to the mother and from being provided with inappropriate and often misleading information about the court proceedings. For example, the boys blame their father for not being able to travel to Z last December. What they did not appreciate, as they only had their mother’s side, was the reason behind the court imposing the prohibition, namely the mother’s behaviour and her threats to remove them. The mother’s unhappiness at being, as she put it, dragged to court, has clearly been communicated to the boys, and they then express this as being the reason for their anger with the father. I have referred to the work done with the boys by the CAFCASS officer. Again, they could not appreciate that the reason for the repeated court hearings was the behaviour of their mother. They also referred to their father lying in court. Otherwise, it is a consistent theme that they could give no adequate reason why they did not want to see their father, and they would refer to historic incidents, which the father in any event denies, and which the Guardian concludes would not in any event lead them to have the apparent hatred that they have expressed of their father.

 

    1. AB sent his mother a long list of complaints about his father by an email sent at 3.22 in the morning on 16th August. He said it had been prepared some time before. I am unclear how that came about. What he said in the email to BH and to me was about the father being aggressive. In her statement, the mother said this referred to two incidents in contact going back to 2004 and 2005. AB refers to an incident in 2012 when the father allegedly dragged him on to an underground train, and he referred to lies being told to his school and Social Services. As I have said, CH told me exactly what AB said to her, leading to the social care referral. My concern is that both these boys have a distorted view of the reality. Some of the complaints they make, or AB makes in his email, such as hardly having any food and doing practically nothing at his father’s I simply do not accept. It is also a factor that these boys worry about the mother. They see the proceedings as causing her stress and, because they have been manipulated by the mother, they blame the father for this.

 

    1. In my judgment, their consistent expressed wishes and feelings are not reliable for a number of reasons. Firstly, because I accept the Guardian’s view that AB does not feel hate for his father inside. Glimpses of the real AB have been available during these proceedings at different stages. I note the evidence is that he relaxes once he has been with his father for a period of time. The wishes and feelings are not reliable for these reasons. Firstly, these boys have been manipulated by their mother and greatly influenced by her in their views of their father. Also they have aligned themselves with her in the mechanism I have described to protect themselves from the ongoing dispute. Further, they have a wholly distorted view of the reality of the situation because the information they have received has come from one source, their mother, and therefore, despite their ages, in particular the age of AB, I do not consider that their wishes and feelings are reliable. CD, who does not have the same attachment to his father, I consider is simply mirroring what his mother says about his father, and that this situation therefore is akin to the situation faced by His Honour Judge Bellamy in considering the wishes and feelings of the child in the case before him.

 

    1. I consider that if these children had emotional permission to have a relationship with their father, they would be able to do so, and that has been shown to a small degree by the fact that they have been able to have contact on these two occasions, albeit with some difficulties.

 

  1. Turning to the particular characteristics of these boys, I do not think either boy is a particularly happy boy. Of course in part that is due to the ongoing nature of these proceedings, but I consider it is due centrally to the parental conflict, where they find themselves as innocent parties in the middle. I consider that the boys are guarded. It is no coincidence that neither interacts with adults at the school. I find that they are both anxious about the mother’s reactions should they speak out of turn. I find it likely, for example, that AB said to his mother that CH upset him by talking to him in school to appease her and/or deflect her questioning, because CH’s view of it was that he seemed quite relieved to have someone to talk to.

 

You can see from that, that the initial impression you might have gained about the case – that mum was a bit lazy and let the children spend more time on their X-boxes than a middle-class parent might think was appropriate and that’s why the children were taken away from her and placed with dad – well, it was a bit more complicated than that.   [The extract above hasn't even included the time the mother had the father arrested and detained for 18 hours because he knocked on her door]

The whole caboodle landed in…

 

Once in a while, even in family law, you read a case where the circumstances are brand-new  (I think of the Port Harcourt fertility clinic undertaking fake labours, the case where the District Judge took the whole court on an uninvited excursion to a grandparents home to check it out, the peculiar case of whether a child was concieved by artificial insemination or biological insemination) and this is another of those.

SA v BN 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4417.html

The case began as private law proceedings, about a 3 year old girl named JN. JN’s father sought parental responsibility and contact with her, following his separation from JN’s mother. The mother initially responded by saying that J was not the biological child of the father and DNA tests were directed. It then came to light that JN’s mother had had previous children who were the subject of care proceedings. The Court asked the Local Authority to look into this.

    1. On 10 February 2012 the section 37 report, was filed, it recorded the mother’s failure to cooperate with the preparation of the report and concluded: “At this stage it is not clear if J is at risk of significant harm; due to Miss N’s lack of engagement, J has not been seen and historical information that has come to light has not been discussed with Miss N“. It went on “The local authority will be considering initiating child protection proceedings in respect of J. The local authority will also be making a referral to the First Response Team so that an assessment can be carried out in respect of J and GN to assess the risk in the light of information received from Children’s Services.”

 

    1. When the matter came on again before District Judge Dowding on 15 February 2012, the mother did not attend but she was represented. District Judge Dowding extended the period for the DNA testing to 9 March 2012 and required the mother to attend with J in order to provide mouth swabs a penal notice was attached to her order.

 

    1. On 27t February 2012 the mother and the grandfather took J for the DNA testing.

 

  1. On 1 March 2012 the mother, without any prior notice took J to Kinshasa in the Democratic Republic of Congo (DRC), allegedly for the funeral of her mother, the paternal grandmother

 

The next hearing is where things started to get properly weird. The maternal grandfather and later, the mother began to assert that whilst in the Democratic Republic of Congo, J had been involved in a car accident and had died.

    1. On 5 April 2012 when seen by RC a social worker the grandfather said the mother was in the Congo and had died following a road traffic accident On 10 April 2012 the maternal grandfather sent a text and two photographs to RC a social worker, saying that J had died in a road traffic accident in the Congo on Saturday, 3 of March 2012. The two unidentified photographs show a coffin with people sitting around it and a second photograph of a body of an old woman in a coffin.

 

  1. Four days later on 16 of April 2012 the maternal grandfather sent three further photographs. Subsequently, the maternal grandfather e-mailed what purported to be J’s Congolese death certificate. It was in this context that RC duly prepared the section 37 report, (dated 4 March 2012) attaching to it the photographs and the purported death certificate,.

 

This hearing then, as a prelude to whether the Court could make any orders about the return of J to the country, had to firstly establish as a fact whether J was in fact, deceased.  As the mother was the person asserting this, the burden of proof was on her. Prima facie, she produced quite a lot of evidence.

i) the death certificate of JN, 700/N008080;

ii) medical report of cause of death, 603 2012;

iii) burial permit, number 012/2012;

iv) pro-justice official police report, 0403 2013;

v) expert request form, 007/201204032012;

vi) death certificate of Sisika Masamba; [the grandmother]

vii) hospital transfer ticket for JN.

 

However, on forensic examination, this evidence rather crumbled

(i) Death certificate.

    1. On about 5 February 2013 EM spoke to a Dr. N from the relevant medical facility about J’s case. A transcript of that telephone call was forwarded to the UK. Dr. N was asked about the death certificate of J and said as follows:

 

I am familiar with this case and I have seen your colleague here. The girl you are talking about did not die here. The number on the documents bears the name of another person. Thank you for raising this problem because we have now discovered that there is a Mafia network in trafficking in documents. We have just had a second case in death certificate from our department but it is a fraudulent document. Briefly, J did not die here, not a trace has been found and I don’t know what to tell you. What we can do is ask you to help us. If the woman in London could give us the contact details of the person who presented her with these documents, after that we could retrace the networks this document is trafficking. I have no further comment.”

    1. Subsequently, on 26t July 2013, Dr. N signed a witness statement in which he dealt with the authenticity of the “cause of death report“, but not the death certificate. It follows therefore that there is no official written record emanating from the Congo confirming that the death certificate, (as opposed to the cause of death report), is a fake. Taken, however, with the information in relation to the report in relation to the “cause of death” form set out below in this judgment, I find on the balance of probabilities that the death certificate filed herein is a fake.

 

(ii)Medical Report of Cause of Death.

    1. Both Dr. N of the medical facility, and the medical director of the medical facility in Africa, have signed witness statements saying that the “cause of death” report is a fake.

 

Initially, CATSR were unable to verify the authenticity of the report as the signatory, a Dr. EKM had been on long-term sick leave. Subsequently, CATSR sent an e-mail to CFAB that Dr. K had been seen on 15 January 2013 and did not wish to discuss the matter. That was not the end of the matter as in a further e-mail AW was informed that Dr. N and Dr. T had told CATSR that Dr. K had been dismissed from the medical facility.

    1. The short statement prepared by Dr. N says as follows:

 

I believe that this document is a forgery as this document does not relate to the death of JN, but to another person. The document is a false document. The child, JN, did not die in this hospital. Accordingly, I have no hesitation in concluding that this document was a fake.”

(iii) Burial Permit.

    1. On 14August 2012 Mr. M was interviewed Mr. M is the manager of a Cemetery where the mother says that J is buried and which it is said is shown in one of the photographs produced by the grandfather showing the mother and a young man standing next to a wooden cross upon which is written J’s name. Mr. M says (and he thereafter confirms in his statement) that until July 2012 he alone was the person authorised to produce a burial permit for the cemetery. Since July 2012 the system has changed and officials in the town hall now produce the permits. This burial certificate is however dated March 2012 and therefore he would have been responsible for issuing a permit.

 

    1. Mr. M said that the document is a fake for the following reasons:

 

a) Mr. M does not recognise the stamp, (which is not that of the cemetery), or of the signature of the person purporting to sign it.

b) The date of birth is not written in the usual way and the age of the child is simply written as one and a half, which Mr. M says, makes no sense.

c) The telephone number on the document is incorrect as there are ten digits in Congolese phone numbers and there are only eight written on the document.

    1. It was confirmed, for completeness sake, that the burial permits now used and issued by the Civic Hall are in a wholly different format from that of the burial permit carrying J’s name.

 

    1. I accordingly find that the burial permit is a fake.

 

(iv) The Official Police Report.

    1. Mr. MM (Commandant in the DRC police force in Kinshasa), was seen and confirmed that the report carrying his signature is accurate and that an accident indeed took place. There are, however, two matters of significant concern in relation to this document which would otherwise be the only document confirmed by its author to be genuine. The document which is entitled Official Police Report, gives the wrong date for the accident, referring to it as happening at 9 a.m. on 4 March, instead of the date universally referred to elsewhere and which the mother maintains, namely 3 March and not 9 am rather 16.27 was a date referred to in some of the documents.

 

    1. Added to this, it is accepted by Mr. MM that an official register of all accidents is maintained by the police in the city. When Mr. MM was asked for that register and provide confirmation of his report, he said that “they” had just moved offices and the register had been lost.

 

    1. Taken with the totality of my findings in relation to the other documents produced, I find on the balance of probabilities that the official police report is a fake and the officer in question was lying when he said the report was genuine.

 

(v) Expert Request Form, dated 4 March 2012.

The same observations apply to this document as the official police report, the provenance being the same.

(vi) Death Certificate of Sisika Masamba.

    1. A Dr. ZM, who certified this document, has filed a statement in these proceedings saying that this death certificate purporting to relate to the death of the grandmother is a fake. Dr. ZM was seen and said that the certificate was from his hospital, and the name on the document was his, but the writing and the signature were not his. Furthermore, and significantly, the number on the death certificate (700/NO06050) was produced on 7 October 2011 for an entirely different woman called D L and not for the grandmother.

 

    1. The death certificate for the grandmother is a fake.

 

(vii) Hospital Transfer Ticket.

    1. The mother gave evidence that J was initially admitted to one hospital and was then transferred to the hospital where she died. Officials from the original hospital, a Mr. CK and a Mr. KN, were seen at the hospital. They said that the document bore the name of their hospital but that it had not been produced by the hospital. When asked to clarify, they gave the following reasons for saying the document was a fake:

 

a) The transfer tickets produced at their hospital are booklets, whereas this was a full format A4 piece of paper.

b) They do not accept serious accident cases at the hospital.

c) They place the stamp at the bottom and not at the top of their documents and their stamp is small and not the same size as the stamp that appeared on the document.

d) On the transfer ticket in the place marked they always write: “CH” this had not been done.

e) For clinical information they always refer to the general condition of the person and write a comment such as “traumatisation” or “lesion” or “wound“, in the transfer ticket produced there is no reference at all to the general condition of the person.

f) For the destination, if it was a transfer ticket originating from their hospital they would have spelt the destination hospital differently

g) For the dates they always write …/…/20.. and the rest is written in by hand. On this transfer ticket the 2012 had been made by machine.

h) There was no-one in the hospital with the signature that appeared on the purported transfer document. Generally, when a transfer document is produced it mentions the name of the person who authorised the transfer and his signature is at the end, but this document did not bear the name of the person responsible for the transfer.

i) The document produced showed someone else had taken a page from a folder and scanned it in to increase the font for the typeface. In their tickets that the records are keyed in, but they do not much use either type face or the font on the purported transfer document.

j) Finally, the document does not even have a reference in hospital records which are kept at the so-called originating hospital.

    1. On 13 August 2013 Mr. M of CATSR returned to the hospital in order to obtain statements confirming all this information. He met with Mr. C again and on this occasion a Nursing Sister RK. They felt unable to produce a confirmatory statement or comment on the authenticity of the document without the original alleged hospital transfer ticket, which has not been produced by the family.

 

  1. Whilst a signed witness statement to confirm the contemporaneous note of the conversation Mr. C had with CATSR would be preferable, I conclude, on a balance of probability, that the hospital transfer ticket is a fake for the reasons listed by Mr. C and that it bears no resemblance to a genuine transfer document.

 

If you are thinking that right about now, none of this looks too good for the mother, and that faking your child’s death to avoid a contact order is somewhat extreme, you are not wrong

    1. Finally, in considering the evidence purporting to support the mother and grandfather’s case that:

 

i) the grandmother, SM, died on or around 27th of February 2012 and was buried on 3rd of March, and ii) that J was killed in a road traffic accident on 3rd March 2012,

I consider also the photographs produced by the grandfather in April.

    1. In relation to the photographs of the woman in the coffin, there is absolutely no evidence that the woman in that photograph is the grandmother. Further doubt, if necessary, is cast on them by the fact that notwithstanding she was said to have died in February and the photograph was produced in April, the photographs have a Christmas border on them. I do not accept the grandfather’s evidence that it is traditional to put a border on such a photograph and to decorate them in such a way; neither do I accept that this border was other than specifically Christmas related. One glance at the photographs showed these are definitely Christmas decorations.

 

    1. In relation to the photograph purporting to be the mother standing by her child’s grave, I have no doubt that this was staged for the benefit of these proceedings. It shows a wooden cross, easily made, with hand rather machine printing on it.

 

    1. The agreed evidence in this case, endorsed by the doctor’s evidence, is that the level of corruption in the Congo is such that there would be little difficulty in obtaining fake documents of the type produced in this case.

 

    1. In my judgment the documents are fake; there is no credible evidence that the grandmother died around 27 February 2012 or that J died on 3rd of March, whereas there is very considerable evidence that the family have set out to produce false documentation in order to try and deceive this court and, more importantly J’s father, into believing that she is dead.

 

    1. On 11 July 2012 the mother was ordered to hand her passport over to the guardian for safekeeping until further order. According to the mother, her father (the grandfather) wanted the mother to go to France to friends for Christmas. The grandfather contacted the mother’s solicitor to ask whether or not agreement could be reached for her to have her passport to enable her to obtain a visa and thereafter go to France. By consent, an order was made on 13 November 2012 granting leave for the passport to be released, on the basis that the passport would be returned to the guardian within three days of the mother’s return to England.

 

    1. The mother’s case is that she was unable to get the necessary visa and so the planned trip to France did not take place. She says in her statement that she forgot to return the passport and kept it in a handbag where she used it to enrol at college for the new term. In addition, she needed it, she said, in order to make arrangements in relation to her bank account.

 

    1. The mother’s case is that on 2 February 2013 she got the bus to college and on arrival her passport was missing. The mother denies having travelled outside the area and insists that the passport was genuinely lost.

 

    1. The court ordered the mother to produce evidence from both the college and the bank that she had used the passport for the purposes stated. She has failed to produce any such evidence. There must be a very strong suspicion that the mother travelled to the Congo or France to see J over Christmas 2012 and that far from losing her passport, she was unable to give it back to the guardian showing, as it would, that she had travelled to that country.

 

  1. Whilst the court may have strong suspicions that the mother’s account in relation to the passport is untrue, I do not feel able on the necessary standard of proof to find as a fact that the mother travelled to the Congo.

 

So, not only did JN not die in a road traffic accident whilst visiting the Congo with the mother to attend the grandmother’s funeral, the Court didn’t believe that the GRANDMOTHER was dead either.

 

Findings and Conclusions

    1. I am satisfied on the balance of probabilities that:

 

i) The mother left the United Kingdom on 1 March 2012 as a result of the section 37 report and in the knowledge that social services intended to launch child protection proceedings in relation not only to J, but significantly as far as the grandfather was concerned, to J and G, the children of his most recent marriage. I am unable to say to the requisite standard of proof whether concern about the outcome of the DNA test played any part on the decision. ii) That the application made by the mother for a visa allowing her to travel to the Congo made on 15 February was made as a direct response to that report.

iii) There was no telephone call to the effect that the maternal grandmother had died. I have no idea whether she is dead or alive. It maybe that the photographs produced by the grandfather are indeed photographs of the funeral of the grandmother. If so, that funeral took place, I am satisfied, near to Christmastime, some time before, and not in March 2012. The death certificate was a fake.

iv) The mother travelled to the Congo with J on 1 March. Thereafter the mother and J lived with the extended family and probably her uncle until such time as the grandfather obliged the mother to return to the UK in June of 2013. In my judgment it is a moot point as to whether or not she would have in fact returned to this country had not the grandfather travelled to the Congo and obliged her to return.

v) I find as a fact that J did not die whether in a road traffic accident or in any other way and the documentation produced is fake. It follows that I find that J is alive and that the mother and grandfather each know of her whereabouts whether it be the Congo, France or UK.

vi) I am satisfied that the grandfather’s relationship with his daughter is enmeshed and unhealthy at best and that the grandfather has shown on more than one occasion that he will not allow his daughter to move away from him and establish her own life. I am satisfied that he brought the mother’s relationship with the father to an end, wishing her to return to live him.

vii) Similarly, I am satisfied that he would not allow her to stay away in the Congo and that his relationship with her was more important to him than the fact that by bringing her back to England he was separating mother and child.

 

[I haven't really gotten into the whole dynamic of the relationship between the mother and the grandfather, which is a whole other can of worms in the judgment - but the Judge had to look at whether this tissue of lies had been orchestrated by the mother alone...]

    1. The question then arises as to who masterminded this elaborate façade. In her assessment, prepared in the care proceedings and dated 29 July 2009, the social worker (J Cl) spoke to the mother on a number of occasions. She referred to the mother as appearing: “Distracted and disinterested in most of the questions and did not speak freely. Although she provided an answer to all of my questions, she provided short answers. I found it extremely difficult to draw her into free conversation. B was unable to maintain eye contact in the course of any of my sessions with her.

 

    1. Those observations chimed with my own assessment of the mother during the course of her evidence. She was virtually monosyllabic. She was courteous and replied to the questions she was asked, but she was throughout completely flat, showing no emotion whatsoever, even when speaking of what, on her case, were the simply appalling events of 3 March 2012.

 

    1. In assessing this mother I bear in mind that whatever the truth of J’s death, she is a young woman who was abused and has been traumatised by her life experiences since she came to this foreign country at fourteen-years of age. In those circumstances it would not be right for me to use her demeanour as evidence against her assertion that J died as opposed to evidence of a deeply troubled young woman.

 

    1. I do, however, feel able to say with certainty that this mother would have been quite unable to have planned and put into effect the removal of J to the Congo and to have thereafter arranged the production of the documentation.

 

    1. It follows that I am satisfied that the grandfather has organised and manipulated events every step of the way. It should come as no surprise to the court that J was spirited away to the Congo. DN was sent back to the Congo to avoid the consequences of his having raped and impregnated his half-sister and I have no doubt that the mother would have been sent back to the Congo had the police not acted on the tip-off after the grandfather’s arrest for rape. Throughout the papers one can see the grandfather’s manipulative hand. He is there at each appointment, making arrangements, organising things and was, and I am satisfied remains, in complete control of every aspect of his daughter’s life.

 

    1. The grandfather made it clear that the uncle in the Congo is the member of the family who controls matters at that end that is where the mother lived I have no doubt that the grandfather and the uncle between them organised and obtained the various documents.

 

    1. The mother has recently remarried and is expecting another child. It remains to be seen whether she will now be allowed to make a life of her own.

 

    1. The grandfather as unrepresented Intervener has played a full part in the proceedings. He has been courteous and polite throughout. On one level he gave plausible evidence, although his self-centred approach was apparent at every turn. He was considerably more animated than the mother, particularly towards the end of his submissions when he was bordering on tears but tears of self-pity in relation to the effect the proceedings had had upon him. This was in contrast to the way in which he spoke of the death of J, in positively callous manner, saying that the hearing of her death had “spoilt my day, spoilt my shift at work” and saying, quite brutally, that once J was dead he had destroyed everything about her, including any photographs he may have had.

 

  1. I am satisfied that the grandfather knows of the whereabouts of J and that he could organise, if he so chose, to ensure her return to the UK, her country of habitual residence immediately. Accordingly, I find that J is alive and will make a raft of orders designed to ensure her return to this country as soon as practicable.

 

I know that private law proceedings can get vitriolic, and even have false allegations thrown around, but telling a father that his daughter is dead sets something of a new low.

Rearrange these three letters – F, W, T

This is the private law case of Re C (A child) 2013, and frankly, the Court of Appeal missed a trick in not naming it Re (WTF?) 2013    (which also makes me pang for a Court of Appeal authority involving a child named E, where wind plays a major feature, so they can call it RE-E-Wind  – when the crowd say Bo, Selecta)

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1412.html

The case involves a five year old boy, C, who became the subject of residence and contact applications, his parents having separated.

  1. The order complained of was made in the county court on 6 March 2013 in Children Act 1989 proceedings issued by mother in March 2012. The order prohibited father from removing his son from the care of mother or from his primary school and provided for indirect contact between father and son in the form of letters, cards and small gifts. It follows that direct contact was refused. In circumstances which I shall describe the order was the culmination of a series of serious procedural irregularities which caused the decision to be unjust. The order was also wrong given that one of the irregularities gave rise to an assumption of alleged facts against father when the court had not conducted a finding of fact hearing and accordingly the judge’s welfare evaluation was based on what is said to be a false premise. 
  2. It needs to be understood that the allegations made against father are serious. The most serious of the allegations and the assertions of risk were not made by mother but by the Cafcass practitioner who was the family court advisor. The allegations have not been decided and nothing which follows in this judgment should be taken to minimise the risk that might exist if the allegations are true. Equally, if the allegations are not proved or the risk assessment is as a consequence or otherwise wrong, the child who is the subject of these proceedings and his father have been seriously failed.

The case peculiarly seems to have proceeded on the basis that allegations made about father had been proven by the Court, when in fact they had not yet been tested. That failing, which is bad in itself, increases when one realises that the main source of the allegations of risk was not one of the parties, but the CAFCASS officer who had been appointed to be the independent eyes and ears of the Court.

In fact, by the time the case got to a substantive hearing, the CAFCASS officer was refusing to visit the father at home, refusing to meet with him in the officer unless there was another worker present, was unable to complete the section 7 report and had become the complainant in criminal proceedings about father’s behaviour towards her.

The opinions that were being expressed by the Cafcass practitioner were not just in her role as a family court adviser independent of the parties. She was also a complainant in criminal proceedings. This court has come to the very firm conclusion that it was wholly inappropriate for the family court advisor to continue to act as the court’s advisor and the child’s ‘effective access to justice’ at a time when she was the complainant in criminal proceedings against the father. It was submitted to us that it is a regrettable fact that Cafcass practitioners are placed in positions of real conflict by complaints and threats made against them and that their priority must be to try and put that to one side and undertake their duties on behalf of children. We acknowledge that and the extraordinary work that they do in the public interest but there is a dividing line in terms of due process and conflict of interest that was crossed in this case. A criminal complainant cannot advise in a family case where the person accused by that complainant is a party.

 

(I’d suggest that one doesn’t need Basil Rathbone, Robert Downey Junior or Benedict Cumberbatch to help one in reaching that conclusion. How on earth can a CAFCASS officer be independent at that point?  That doesn’t mean that the Court have found that the CAFCASS officer was wrong or right in her complaints, just that by that point, she could no longer be assisting the Court in making recommendations about the child’s future – whatever was happening between her and the father had contaminated the independent nature of the role which is so integral to it)

However, she did continue, and prepared a report which understandably was not very favourable to father and considered that he presented an unmanageable level of risk.

 

 

  1. The report filed on 19 December 2012 was 19 close typed pages in length. It described detailed allegations of fact previously unknown to the court in terms which read as if the allegations were true. The reader is left in no doubt that the family court advisor believed the allegations to be true. At no stage was it highlighted that the facts had not been established by a process of fact finding in a family court. It is entirely unclear what facts father had conceded or might concede, which is not surprising given that he was not involved in the preparation of the report. The author described the risk in the case as being:

     

     

    “father’s lack of understanding of the impact of his offences on his child in relation to his risk taking behaviours, domestic violence, risk of possible child abduction; the father’s mental health and related issues, public disorder and so on.”

  2. A very detailed analysis of risk was conducted by the family court advisor with the benefit of input from professionals contacted by her during the preparation of her report. That included whether father’s mental health issues including suicidal ideation, depression and anger and his own social isolation were relevant (on the assumption they were accurately described). One of those professionals compared father with Raoul Moat (the panel beater, tree surgeon and bouncer with criminal convictions for violence who shot his ex-partner, killed his new partner and seriously injured a policeman in 2010). That was not only a professionally inappropriate comparison, it was presumably quoted in the report for maximum impact. Despite that, the author clearly indicated in her report that father’s “mental health status remains an un-assessed risk factor“. The report recommended the order made by the judge three months later. It did not recommend that a fact finding hearing should take place.

 

Okay, you are probably thinking by now that this case was something of a car crash – there are allegations being reported as though they were facts, the independent CAFCASS officer being the complainant in criminal proceedings about father and lurid comparisons of the father to Raoul Moat being made without much evidence.

Stay with me, it is about to get worse.

The Court of Appeal note that both parents were litigants in person, and though they were doing their best with the thorny process, were not able properly to highlight to the Court exactly how messed up things had become. The Court of Appeal describe the judicial handling of the case as ‘fire-fighting  – it may even have been quality fire-fighting, but it was not Case Management’

  1. On 21 December 2012 the proceedings were adjourned to a contested hearing because father did not accept the Cafcass recommendation. The first available date was on 6 March 2013 before a Recorder. There were no attempts in the intervening period to update any of the information contained in the Cafcass report, in particular about father and the risk that it is said he presented. Although both parents were given permission to file further statements the question of how father could or should respond to the serious allegations in the Cafcass report was not addressed, that is the key issues were not identified to be answered and a direction for a fact finding hearing was not made.

     

     

  2. Appointments of the type I have so far been describing take time, particularly where one or more of the parties are litigants in person as a consequence of the provisions of LASPO 2012. If the dispute is not immediately susceptible of conciliation or out of court mediation it will require a lawyer’s analysis. This is after all a court of law. In the absence of lawyers, the judge has to do that and to do that without assistance and sometimes with quite vocal hindrance. That requires more time than in a circumstance where the lawyers can be required to apply the rules and practice directions, produce the witness statements, summaries, analyses and schedules, obtain instructions and protect their lay client’s interests. Where a court is faced with litigants in person the judge has to do all that while maintaining both the reality and perception of fairness and due process. I do not criticise any of the judges involved in this case. Each was handed a case about which he or she knew nothing and given time only to deal with the most pressing issue or two that had arisen. That was fire fighting, it may even have been quality fire fighting but it was not case management.

 

So, we have a car-wreck with the CAFCASS officer, both parents are in person – looking back earlier the only statement from mum dealing with the allegations against dad was not actually evidence (it had no statement of truth) and the Judges who looked at the case were doing their best, but hadn’t really gripped it.

It still gets worse

On the morning of 6 March 2013, that is immediately before the contested hearing began, the family court advisor filed and served a 22 page document entitled ‘Chronology of Significant Events’. The court had not given a direction to permit such a step and so far as can be ascertained there was no advance notice of the same. The document was a detailed schedule of hearsay evidence that might have been appropriate if it had been directed by a court as a lawyer’s forensic summary of the allegations and materials that had already been filed. It was not a summary of the evidence filed unless it could be argued to be a record of the source materials for the section 7 report that was filed three months earlier. It should not have been admitted without argument and it was clearly highly prejudicial and of questionable probative value. It became the primary evidential document in the case, replacing the mother and almost everyone else who might have had something to say on a question of fact. The document was made available to father on the morning of the contested hearing that gives rise to this appeal.

So in the context of all I’ve previously said, the CAFCASS officer then turned up on the day of the hearing, against litigants in person, and ambushed them with a 22 page document, full of stuff that wasn’t actually evidence.

Does it surprise you that I am about to say – it still gets worse

  1. In that context, father made an application to adjourn the contested hearing. His primary purpose was to adduce up to date evidence about his mental health. He asserted that his treatment was susceptible of successful completion and that he would be able to demonstrate that with materials from the professionals involved. In addition and unknown to the family court advisor, the probation officer she quoted in good faith had been replaced sometime in 2012 and as this court now knows, the risk described by father’s senior probation officer who had detailed knowledge of father’s supervision was fundamentally different. In simple terms, his analysis was that father presented a low risk.

     

     

  2. It is not surprising that the judge who was new to the case was unimpressed by an application to adjourn given the lengthy delay there had been in getting the first contested hearing listed. Had she known that a fact finding hearing had never occurred she might have been able to find a constructive way to use the hearing to good effect and still afford father the opportunity to update the evidence about risk and to fairly deal with the family court advisor’s materials.

So father wasn’t given his adjourment, to deal with the ambush that he’d been hit with. And the Court didn’t properly appreciate that the allegations being thrown at him were untested allegations rather than determined facts.

What do you think? Does the next bit make it better or worse? Place your bets ladies and gentlemen.

  1. The hearing then commenced. The mother did not give evidence to substantiate her allegations and was accordingly not questioned by anyone. As a matter of pure technical form, her document of 12 August 2013 was never admitted into evidence. There was therefore no evidence from mother for father to meet and he was accordingly afforded no opportunity to test the direct evidence of domestic violence. The only evidence came from the family court advisor. As I have remarked, she treated the allegations as fact. She gave evidence based upon her report and her substantial chronology, that is hearsay evidence about the facts in issue as well as reported opinion from other professionals and her own opinion. I do not say that this was entirely inappropriate. It is appropriate for a family court advisor to identify the facts or alleged facts she has relied upon and the opinions of others that she accepts or adopts in coming to her own opinions and recommendations. She is after all a qualified social worker whose skill and expertise are those of an expert in that field. That said, had a fact finding hearing been held, third hand hearsay evidence of facts in issue might not have been given great weight in the absence of the evidence of mother or a concession from father.

     

     

  2. I do not ignore the possibility that an alleged victim of domestic violence from an allegedly over controlling or dangerous perpetrator may need considerable support to give her evidence. At the very least it should be established just what evidence she is able to give and an appropriate opportunity should be given to the alleged perpetrator to challenge that evidence. That could have been done by case management or, as I shall describe, by a more inquisitorial process that protected the interests of all involved. What was not acceptable in my judgment was the presentation of facts that were in dispute as if they were decided. The judge who heard the case (and who would have had no knowledge of it before she walked into court on the morning) was entitled to know that contrary to the impression given this was a fact finding hearing where the facts were in dispute. The hearing that was conducted was accordingly not a fact finding hearing, it was a welfare hearing which heard about the severe risk that it was said father presented to mother based upon facts that had never been tested let alone determined by a family court.

Oh God… and just when you think that I must be finished, and things could not possibly have got any worse

To add to the air of unreality the family court advisor gave her oral evidence from behind a screen. Special measures in a family court are not fixed by primary or secondary legislation as they are in the Crown Court. They can however be used in a similar way and for similar reasons. They are a means of facilitating the evidence of someone who is vulnerable so that the quality of their evidence is not damaged by their vulnerability. Children who give evidence often do so with the assistance of special measures such as a video link. It is not inconceivable that a professional witness might need the same facility but it is much less likely: Re W (Care Proceedings: Witness Anonymity) [2002] EWCA Civ 1626, [2003] 1 FLR 329 at [13]. The mischief in this case is compounded by the fact that the family court advisor gave her evidence as an officer of the state behind a screen rendering her effectively anonymous and unseen and she was afforded that facility without due process. If it was said that such measures were necessary that should have been on application to the court on notice to the father and to the mother and full reasons should have been given. There was no such application and if there was neither this court nor the father were aware of it and there is no record of any determination. There is no order. It should not have happened in the way that it did.

 

Scroll back, read that again  – the CAFCASS officer gave her evidence from behind a screen.

Re WTF 2013

Needless to say, the father won his appeal against the order – he was fortunate that he realised, or got advice, which showed him that (as the Court of Appeal said) he had been denied Natural Justice at almost every stage of the process, and the final decision was fundamentally flawed in almost every regard.

 

The Court of Appeal give some useful guidance  for management of cases involving litigants in person (this can only be aimed at Judges, since there’s no prospect of LIPs being aware of this case, never mind drawing judicial attention to it)

  1. I have intimated that a more inquisitorial process may help those judges who need to deal with very difficult cases involving litigants in person where emotions can run very high. At the hearing at which the section 7 report was first available there was an opportunity for detailed case management. In less fraught cases this is often a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings. That was the latest of the various hearings at which the key issues of fact and opinion could have been identified and if not resolved, described on the face of an order so that the parties and the court would have been clear about the purpose of the contested hearing. Directions could have included providing short answers to the key issues identified and up to date materials which would have avoided father’s last minute adjournment application and his successful application to this court to adduce additional evidence.

     

     

  2. At the hearing and given that it would have been clear whether the key issues included the need to make findings of fact, the judge can control the process to ensure that it is fair. Having been sworn, each party can be asked to set out their proposals and to confirm their version of the disputed key facts. They can then be asked by the judge what questions they would like to ask of the other party. Where lawyers are not instructed the judge can then assimilate the issues identified into his or her own questions and ask each party the questions that the judge thinks are relevant to the key issues in the case. It may be appropriate to give the parties the opportunity to give a short reply. In that way the issues can be proportionately and fairly considered. 

     

  3. At the conclusion of the hearing before us it became clear that separate proceedings under the provisions of the Family Law Act 1996 had been commenced by mother without notice to father. This court has not had the opportunity to scrutinise that process. Yet another judge is involved but directions have been given in those proceedings for the facts in issue to be identified and resolved. Given that this has led to detailed witness statements being filed by the parties, we shall direct that any further directions in those proceedings be listed before the same judge who is allocated to determine the Children Act proceedings. 

     

  4. The problems which have complicated this case are hopefully rare. The solution is to use the processes of the court to better effect. The family court is a court of law not a talking shop. No matter how much its judges will strive to obtain safe agreements between the parties, its rules, practice directions and forensic protections are for a purpose – to do right by all manner of persons, without fear or favour, affection or ill will.

From Russia, with love

 

The committal decision in Re Davies 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3294.html

 

This one is likely to rekindle the debate, both amongst professionals and the wider public, on the powers of the Court to deal with breaches of court orders and contempt of court.

 

There are some, John Hemming MP springs to mind, who consider that imprisoning people for family Court matters which fall far short of being criminal offences is not acceptable in a modern society and illustrative of the family Courts having too much sway and not enough accountability. The secrecy/confidentiality of the family Courts just exacerbates these concerns. They might well say that punishment and resolving family disputes don’t go together.

 

There are others,  I suspect many in the Father’s Rights movements, who would say that the family Courts are largely toothless when it comes to dealing with people who have no respect for orders and decisions and just take matters into their own hands to thwart contact. If you have spent two years of litigation and jumping through hoops and possibly thousands on legal costs to get your contact order and then it doesn’t happen because the parent with residence of the child just ignores the order, then you can see that you would WANT there to be consequences for breaking court orders and you would WANT those consequences to be dished out.

 

On the one hand here, we have grandparents who spent five days in prison because they did not want to tell the Court where their daughter had taken their granddaughter Alice too.

 

On the other, we have a mother who defies a Court order for contact, takes the child away to another country and leaves the father not knowing where his child is or how to find her, who then gets her family to lie in the witness box and breach Court orders that are designed to locate this mother and get her to bring the child back to the UK so that the arguments can properly be heard. 

 

 

This particular case made some of the national press, who took the understandable emotive line of how awful it is to lock up grandparents for not telling the Court where the child was.

 

One also has to look at it from the side of the father, and of the child who has been denied the lawful contact she should have been having with her father because the mother took the law into her own hands.  [i.e one could have written the story as a very emotive one about how the child had been whisked away from dad and he had no idea even which country she was in or whether she was safe]

 

Firstly, it is worth noting that although the grandparents and the aunt were locked up on 25th October, the Court adjourned sentencing until 30th October (the judgment on that is not yet reported) to allow them the chance to get some legal advice and do what is called “purging their contempt”   (in essence, apologising to the Court for breaching the orders and complying with the order now by giving what information they have about the child’s whereabouts).  

 

Secondly, it is worth noting that although the father was present in Court and represented, he was asking for the family members NOT to be imprisoned.

 

Of course, with the media being the way it is, what we want is a simple good guy and a simple bad guy, and where the stories are more complex than that, the press coverage struggles to set out the nuances. So much easier to just side with either the grandparents or the father, and paint the other side as being wicked.  I don’t even know that you could paint the mother as the bad guy here – she was certainly foolish, but until she gets back and has her say, we don’t know what lies behind her decisions.

 

[The grandparents were released on 30th October. As I understand matters, the Aunt is due to appear in Court on Tuesday 5th November]

 

 

Anyway, by way of background

 

  1. In this matter I am concerned with one young child, Alice Gabrielle Davies, who was born on 18th September 2008 and is five years of age. Her mother is Jacqueline Davies. Her father is Julian Brown. Her maternal grandparents are Patricia Anne Davies and Brian Davies. Her maternal aunt is Melanie Williams. The parents’ relationship broke down and they had recourse to court proceedings. The father was unable to have contact with Alice. Those court proceedings resulted in an order being made on 29th June 2011 for the father to have contact with his daughter on a regular basis. In fact, subsequent to that order, he has not seen her since 18th December 2011.
  1. On 1st March 2012, the mother submitted an application for the cessation of contact because she was planning to leave the jurisdiction. In the reasons that she gave for applying for that order she said:

“Unfortunately, because of the constant need to take time off to prepare for and attend court, my job became untenable and my employment terminated. So due to the financial circumstances of not working and the implications of the continuing costs of solicitors’ fees etc, which has left me in debt and without the security of a job, and trying to sort out the finances of the here and now, I have had to make an uncomfortable decision. Therefore, because of the need to support my child and myself and the economic climate in the United Kingdom, after months of looking for work, I have had to take drastic action and have been forced to seek a position further afield, leaving my roots and family support.”

  1. Sometime after that application – the date is not at all clear – the mother did indeed leave this jurisdiction with Alice. From the enquiries made by the Tipstaff, it appears that she flew to Russia. There is no record of her returning from Russia to this jurisdiction, and it is unknown whether she remains living in Russia with Alice or in a country somewhere else.

 

So, the father had to go to Court to get an order for contact with his daughter, the contact wasn’t provided and mum intended to apply to discharge the existing contact order because she wanted to move abroad.  What she then did, in leaving the country with the child without the Court having granted permission, was unlawful.

 

In those circumstances, it is entirely understandable that the Court made orders that Alice should be returned to the UK, and that she should be in the UK whilst the Court considered the respective applications of the mother (to end dad’s contact order and move abroad) and the father (to continue his contact and presumably resist any move abroad unless his contact was going to be adhered to)

 

It is important to note that the Court had not made any decisions about who was right in the long-term on those applications, just that it was premature to move Alice abroad before both sides had their say and the Court reach a view.

 

Because of the difficulties in tracking down the mother and Alice, the Court used their powers to make orders that members of mother’s family provide any information they had about where mother and Alice were.

 

  1. Mrs. Davies, accompanied by her husband, Brian Davies, attended before me yesterday, and I made an order requiring her, on one last chance, to divulge the details of the whereabouts of Alice and the mother. During the course of that hearing the maternal grandmother, Mrs. Davies, gave evidence on oath before me. She told me repeatedly and in no uncertain terms that she had no means by which she could make contact with her daughter and that she was solely reliant upon her daughter making contact with her, which she did from time to time. She also told me repeatedly that she had no idea where her daughter or Alice were in the world. Mr. and Mrs. Davies then left court and travelled by car back to Cardiff.
  1. During the course of that hearing, at the request of the Tipstaff, I required Mrs. Davies to give him the name and address of her other daughter, Melanie Williams. The police attended upon Mrs. Williams last night and served her with the location order and explained that order to her, and the duty that she was therefore under to cooperate with this court and to give information that was available to her about the whereabouts of Alice and her sister Jacqueline.

 

The police, in serving those orders, asked some questions of the family, and it was their answers to these questions which got them into difficulty and eventually into cells  [underlining mine, for emphasis]

 

  1. I have statements from the two police officers who attended upon Mrs. Williams – a Police Constable and a Police Sergeant. The statements record the self-same evidence, namely that when they asked Mrs. Williams when she had last been in contact with her sister, Jacqueline, she replied, to start with that it was “about three years ago“. She insisted that since they were 18 and had left home they had gone their separate ways and they had not spoken for some time. She said that she had sent some emails to her sister. Those had not been returned undelivered, but she claimed that she had not received any reply. She continued to deny having any knowledge about where her sister lived. The police officer records as follows: “Whilst looking for the mobile number for Patricia Davies, I noticed a contact ‘Jacq’. I asked Melanie if this was her sister. She did not reply. I therefore noted down the mobile number”. Again, the police officers asked Mrs. Williams about when was the last time she had contact with her sister. The police officer says: “Melanie eventually stated that she had had a Skype text conversation in August 2013 but insisted she did not know where her sister had been when they had that conversation.”
  1. Because one of Mrs. Williams’ daughters was present at the home when the police were there, they advised her that they were minded to arrest her for breach of the order. They therefore contacted the maternal grandparents, who were still en route from this court, to look after their granddaughter. The police were still present when Mr. and Mrs. Davies arrived. The Police Sergeant explained to all three of them the reason they were there and urged them to provide any information in order to prevent the arrest of Mrs. Williams. The Police Sergeant then sets out in his statement the following: “Patricia Davies then said loudly, ‘I can’t, I can’t, I won’t. They’ll take the baby away’.” The Police Sergeant again urged the grandmother, Mrs. Davies, to provide any details she had of her daughter Jacqueline. She then told the police officer that she had a mobile number. She went out to her car and came back and gave the telephone number to the police officer. The Police Sergeant asked her to telephone that number. He records Mrs. Davis replying: “Jacqueline wouldn’t answer because it was the middle of the night where she was”. She was asked how she knew it was the middle of the night. She said: “I don’t know”. She was again asked: “How do you know it is the middle of the night?”, and she replied: “Because it’s thousands of miles away”. She was asked how she knew that, and she said that Jacqueline had told her. She finally said: “You’ll just have to arrest me. I don’t care what they do to me”.

 

 

The family were brought back to Court on 25th October and gave evidence to the Court about these matters. On the face of it, they had a contact telephone number for the mother, knew where she was and were refusing to provide the information “You’ll just have to arrest me. I don’t care what they do to me”.  The prospect of them being imprisoned for contempt was very high as a result of this.

 

  1. Over the course of this afternoon, Mrs. Davies, Mr. Davies and Mrs. Williams have given evidence on oath. Mrs. Davies gave evidence first and then her husband and then her daughter, Melanie. Having considered their evidence, I am in no doubt whatsoever that all three of them are lying to me. I find that Patricia Davies has lied and has admitted lying on oath when she told me yesterday that she had no mobile number for her daughter and had no means of contacting her. It is wholly remarkable then that on her journey back from this court she is sending texts to her daughter. Of note, she was asked by the police officers prior to them arresting her whether she had been in contact with Jacqueline today – that is yesterday. She replied: “Yes, but by text but I’ve deleted the texts now”. Mrs. Davis claimed that those texts were deleted because that is her normal practice. I regret to find I do not believe her. I find that she deleted those texts so that nobody would be able to see what she had sent to her daughter or what her daughter had sent to her. I am satisfied, so that I am sure, that Mrs. Davis did say to the police officers: “I can’t, I can’t, I won’t tell you”. That is entirely in keeping with her final comment to the police of: “You’ll just have to arrest me. I don’t care what they do to me”. She said in evidence to me that she knew it was the middle of the night where Jacqueline was because she said Jacqueline had told her. I find once again, so that I am sure, that Mrs. Davies is lying to me. She knew it was the middle of the night because she knows precisely where her daughter is, but she refuses to tell this court.
  1. In relation to Mr. Brian Davies, in my presence in court yesterday I heard him, and I am quite satisfied and sure I heard him, instruct the maternal grandmother when she was giving evidence “not to tell them”. He denied that in the witness box. Mr. Cheesley, the Tipstaff, told me at the start of this hearing that after I had risen from court yesterday Mr. Brian Davies had said: “I’m the head of the family. I told her to leave the country”. Initially, he appeared to accept that that is what he had said, but then he changed it and said that, no, he had not told his daughter Jacqueline to leave the country, he had told her to leave his house. However, he then claimed not to remember whether his daughter had left the house immediately after he had said that or how long a period it was after he had apparently told her to leave the house that she in fact did so with Alice. I note that it is significant that in her application of March 2012, giving her reasons for leaving this jurisdiction, the mother (a) does not assert that she had been thrown out of the home where she was living by her father and (b) quite the contrary, she states that she had a difficult decision to make which will result in her losing the support of her family.
  1. I regret to find so that I am sure that Mr. Brian Davies is lying when he denies saying in court yesterday that he told his daughter to leave the country. I regret to find that I am satisfied, so that I am sure, that he is lying when he claims he threw his daughter out of the house. He claims to have had no contact whatsoever with his daughter for about four years or thereabouts. I regret he gave me no satisfactory explanation whatsoever as to why he should take that course with his daughter or why he does not like her anymore and does not want to have any relationship with her. The best he could come up with was that it was because she had had sex before marriage with her then partner, which resulted in the conception of Alice. I am satisfied that Brian Davies is lying to the court, that he has information he could give but he refuses to give it.
  1. In relation to Melanie Williams, I regret to find that she has lied to this court. First, I note that she told the police that it was some three years since she had last communicated with her sister, Jacqueline. She then changed that in evidence to me, that it had been about two and a half years since she last spoke or had communication of any kind with her sister. When she was reminded of what she had told the police yesterday, that in fact it was August 2013 when she had last had a Skype text conversation, she was unable to be clear in her recollection that that took place, although she admitted that she had said that to the police. When I asked her about what conversation she had with her sister, she could not remember any details at all, and then told me that it was not a conversation at all, and she had not said to the police it was a conversation. She had sent a text to her sister, she said, but received no reply. She then accepted that she had said to the police it was a conversation that she had had with her sister in August 2013, but maintained that that conversation consisted of merely sending a text to her sister and receiving no reply. I regret to find, so that I am sure, that in giving those accounts to the police and to me, Mrs. Williams is lying.
  1. I am satisfied, when I consider the reasons why Mrs. Davies, Mr. Davies and Mrs. Williams are lying to this court, that it is for one reason and one reason only (because, although I have pondered the matter, I can think of no other reason for them lying) and it is this: they know full well where Jacqueline and Alice are but they refuse to tell this court or the Tipstaff where that is because they do not want to assist in any respect in the attempt to try and secure the return of Alice to the jurisdiction of this court. I am satisfied, so that I am sure, that they also have the means of communicating and contacting Jacqueline but they have sought, particularly Mrs. Davies, to obfuscate that position and they have not told me the truth about the communications that they have had with her not only over the last few years but in the last few months and in the last few days. Again, they are lying about those matters because they do not wish to assist this court in seeking to recover Alice back to this jurisdiction.
  1. On those findings, I am in no doubt that all three of them are in contempt of this court

 

 

 

Of course, on a completely human level, one can empathise with the family, they had been asked by their daughter / sister to keep her secrets and not tell the Court or the father where she was, and they ended up in an intolerable position of having to obey the Court order or keep their promise.  Without being in that intolerable position, it is really hard to know how you would react.

 

It is always important though, to have an eye on the other side of the case, which is that the father and child were kept apart and denied contact as a result of the mother acting unlawfully and asking her family to act unlawfully to help her, include them lying to the Court;  and the Court has to treat matters like this very seriously.

 

If there’s no consequence to breaking court orders or lying to the Court, then what’s the point of the Court at all?

 

I think that if I had been hearing the case, I  probably would not have imprisoned them pending the sentencing hearing, and allowed them to have a short opportunity (say two or three days)  to reconsider their actions knowing that a prison sentence was on the cards. But the Judge had been faced with lies in the witness box on two separate occasions,  even after they had been blatantly caught out, and of course the risk that wherever mother currently was, the family might have tipped her off to run away. It would not have been an easy decision to make.

 

Should the remedy or sanction be imprisonment? Should anyone really be imprisoned for something that isn’t a criminal offence?  There are those who think that imprisonment ought to be reserved for criminal matters, and that one ought not to be faced with it as a result of breaching orders in the family courts.

 

I suspect that there are also parents who have gone to Court and argued successfully for contact with their child, who see orders flouted or ignored or thwarted by the other parent, who are pulling out their hair at how toothless the law seems to be on dealing with a parent who has no intention of obeying Court orders, who would be devastated at the one sanction that the Court has being removed.

 

It depends entirely on which side of the fence you happen to be on, or which group of people are telling you the story. If you were sitting down talking with the grandparents in this case, you’d form a very different view of it than if you were sitting down with the father.

 

I think those are legitimate questions and I’m sure the debate will continue, but in the meantime whilst the law provides for imprisonment for contempt of court and failure to comply with court orders, those who are served with court orders need to bear in mind that this is a risk they take, even if they are pensioners trying to do what they think is right for their own daughter.  

 

 

You have the right to remain silent (or do you?)

 

The decision to give permission to appeal in Re K (children) 2013 might well become an important one, when the full appeal is heard.

I have written about whether the statutory position that a parent can give evidence in care proceedings and that evidence may only be used in a criminal trial for perjury – thus giving a preservation against self-incrimination, has been badly eroded

http://suesspiciousminds.com/2013/02/04/is-there-a-meaningful-right-to-silence-in-care-cases/

and Re K is a very good example of how this can make a massive difference in the case.

http://familylawhub.co.uk/default.aspx?i=ce3473

The father in Re K had been at the wrong end of a fact-finding hearing about what appear to be very grave allegations (there’s reference to a stabbing and a fire) in private law proceedings – it appears that the original allegations and original findings were that mother had stabbed father and set his home on fire, but these findings were fundamentally reversed at a later hearing, finding that father had done these things himself in order to ‘frame mother’

The Court then adjourned for further assessment, having given the judgment in the fact-finding hearing that father had done things that he ought not to have done. Part of that further assessment inevitably covers whether father has reflected on the findings and come to terms with them. At the final hearing, the Judge formed the view that father had not, and that his unwillingness to move forward was indicative of problems in the future. The father’s position was that he was inhibited by the pending criminal proceedings, and knowing that whatever he said could be reported to the police and ‘shape their enquiries’

 

The father’s statement made reference to his right to avoid self-incrimination and that as a result he was not able to say anything about the fire and the stabbing, on the grounds that to do so would have potentially incriminated him in criminal proceedings. That obviously made it difficult for him to make admissions or be frank about the circumstances in which those serious incidents occurred, his part in them and why he says that they would not occur again.

Initally, McFarlane LJ hearing the permission hearing was sceptical about the self-incrimination point, believing as so many of us have done, that the provisions in the Children Act 1989 are sufficient to allow a parent to speak freely and frankly without fear that their words will be used against them in criminal proceedings.  He made a point of asking father’s counsel whether, if self-incrimination had been removed as a factor, the father’s position was that he would have given clearer answers to the judge and those conducting the assessment, and the answer was “yes”

Although it seems from the permission that McFarlane LJ simply felt that the legal advice that father was following was wrong, and that s98 was a complete protection, he accepted that the father’s statement made it very plain that his position was based on that legal advice about self-incrimination and that there was an argument to be had about whether the trial judge had dealt with this properly or whether the decisions made about father’s contact were based on an incorrect conclusion that father was utterly in denial about the events. Permission was thus granted for the appeal.

 

It may be that the Court of Appeal either identify that the provision for evidence of inconsistent statements to be used in a criminal trial clashes with s98 and there is a live problem here to be addressed in cases of this kind, or that they conclude that s98 trumps any provision about inconsistent statements and thus what is said by parents in the family court CAN’T be used against them. Either course, frankly, is helpful and preferrable to the current situation where a parent can be criticised for not being frank and forthcoming and has to do so at the potential expense of having what they say used against them in criminal proceedings if it contradicts any previous statement made to the police.

21. I considered it appropriate to ask Miss Nartey during the course of submissions to take instructions on whether, if self-incrimination had not been a factor in the case, the father would have given clearer answers to the judge as to his involvement with one or other or both of these two key incidents, and the answer came back directly on instructions from the father, “yes”, he would. Plainly if he was going to deny matters, then legally and evidentially the matter would be much more straightforward, but he does not take that course. It is a more sophisticated matter. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf

 

16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf
16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf
16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf

The Commital-ments

Two recent cases on committals – one resulting in a suspended sentence, one resulting in the commital being dismissed on some interesting techicalities.

The first :-  Re Roberts 2013

http://www.bailii.org/ew/cases/EWCC/Fam/2013/1.html

A warning shot across the bows, in relation to parents publishing material on the internet that would identify their child as being the subject of care proceedings.

In this case, Mr Roberts undertook some filming at Derby County Court, and also published on the internet documents which identified that his child was the subject of care proceedings, which is unlawful.  He had also given an undertaking not to do this sort of thing and breached that undertaking.

He was given a sentence of 6 weeks custody, suspended on the basis of him undertaking not to do this again.  (if he does it again, he will serve 6 weeks, plus whatever additional sentence is imposed for the later offence)

Of course, there is a lively and spirited debate at present as to whether parents should be able to do that, but unless and until the law is changed, doing this sort of thing presents a very serious risk to the parent of committal proceedings.  It is particularly worth noting the judicial comment here that breaches of this kind are bound to attract a prison term.

I’m not going to get into the merits of whether the law should change to allow Mr Roberts to do this, to publicise his case and speak out about whatever injustice he considers has been done to his family – the judgment is a cautionary tale that the law STILL applies to people even where they consider it to be unfair or foolish, and that there are serious risks attached to breaching the law.

I would add that as more and more litigants in person come into the family law system, the more vital it is to have clear and easy to follow rules about what can and cannot be said by a parent about the ongoing court case. The President’s direction of travel towards more openness is going to make it even more important that parents know exactly what the rules are.

It is such a short judgment, I can publish it in full. Note in particular, my underlined passages for emphasis.

RE MR PAUL ROBERTS

1.     On the 19 June 2013, Mr Paul Roberts appeared before His Honour Judge Orrell at the Derby Combined Court Centre; Mr Roberts was assisted by Mrs Jacque Courtnage, acting as a McKenzie friend.

2.     Mr Roberts admitted breaches of an order made by Mr Justice Hedley on the 14 June 2012 and breaches of an undertaking given by Mr Roberts on the 12 April 2013, namely:

3.     He allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified W by name as a child who had been removed from her parents’ care and been subject of proceedings under the Children Act 1989.

4.     He published on the Internet images and letters from the local authority which identify W by name as a child who had been removed from her parents’ care and been made the subject of proceedings under the Children Act 1989.

5.     On the 1 May 2013, he allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified J by name as a child who had been removed from his parents’ care and had been the subject of proceedings under the Children Act 1989.

6.     The above matters were breaches of the order made by Mr Justice Hedley.

7.     In breach of his undertaking, on the 1 May 2013, Mr Roberts disclosed information about the proceedings under the Children Act 1989 concerning J to a third party whilst allowing himself to be filmed including filming in the court building before the hearing in these proceedings on that day.

8.     In respect of the breaches, Mr Roberts was committed to 6 weeks custody to run concurrently in respect of each breach; the term of committal was suspended on condition that he complied with the terms of each of the following: [i] the order made by Mr Justice Hedley on the 14 June 2012, [ii] the order made by His Honour Judge Orrell on the 1 May 2013 within these proceedings and [iii] the undertaking given by Mr Roberts on the 12 April 2013.

9.     The sentencing remarks were as follows. The order and the undertaking were to protect a child in care. Any breach of that sort of undertaking is bound to attract a prison term. Breaches by talking to the sort of people you did was extremely reckless. On this occasion I will suspend the inevitable sentence in the hope you will not again risk going to prison.

His Honour Judge Orrell

And now, the second

In the Matter of an application by Her Majesty’s Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court 2013

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/application-matter-of-jennifer-jones-21082013.pdf

And this involved a mother who defied orders of the High Court that the children should be handed over to the father, who proposed to live with them in Spain.  She not only did not hand them over, she in effect went on the lam, and was finally found hiding out in a guesthouse in Gwent.

The two older children refused to go to their father, and even though the order transferring residence remained in force, they continued to live with their mother in Wales.

An application to commit the mother for contempt was brought, the trial Judge having asked the Attorney General to consider the case.

An issue arose as to whether there had in fact, been a breach of the order made by Hedley J, that underpinned the committal application. That order was as follows :-

“It is ordered that:

1 Jessica … Tomas … Eva … and David … shall be returned forthwith to the jurisdiction of the Kingdom of Spain pursuant to the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2 Paragraph 1 above shall be given effect as follows

(a) The children shall return to Spain accompanied by the father on a flight scheduled to depart from England and Wales no later than 24.00 hours on 12 October 2012 (00.00 hours on 13 October 2013); and

(b) The mother shall deliver up the children into the care of the father, or cause the children so to be delivered up, at Cardiff Railway Station at no later than 4pm on 12 October 2012”

Paragraph 1 does not place any obligation on the mother to do this, para 2 (a) relates only to the father, leaving only para 2 (b).  It is clear that the mother DID NOT deliver up the children.

 

18.  The Solicitor General does not base any allegation of contempt on a breach of paragraph 1 of Hedley J’s order. He was right to adopt that stance, for paragraph 1 was not an injunction, whether in form or in effect. First, paragraph 1 was not addressed to anyone in particular. It directed, in the abstract as it were, that something was to be done. But it did not order the mother, or anybody else for that matter, to do something: see the analysis in Re HM (Vulnerable Adult: Abduction) (No 2) [2010] EWHC 1579 (Fam), [2011] 1 FLR 97. Secondly, paragraph 1 did not specify any time for compliance, and that omission is fatal: Temporal v Temporal [1990] 2 FLR 98.

 

19        In relation to paragraph 2 of Hedley J’s order, the Solicitor General, as we have seen, puts his case on two different footings. First, he says that the mother was in breach in failing to deliver up the children by 4pm on 12 October 2012. Secondly, he says that she continued to breach the order by failing to deliver up the children after 4pm on 12 October 2012, which breach, he alleges, continued until 17 October 2012

That seems, on the face of it, to be a legitimate argument. The mother was aware that she had to deliver the children into the father’s care at Cardiff Railway station, no later than 4pm on 12 October 2012. And she didn’t do that. That looks and smells like a breach. But wait.

20    There is, in my judgment, simply no basis in law upon which the Solicitor General can found an allegation of contempt for anything done or omitted to be done by the mother at any time after 4pm on 12 October 2012. Paragraph 2(b) of the order was quite specific. It required the mother to do something by 4pm on 12 October 2012. It did not, as a matter of express language, require her to do anything at any time thereafter, nor did it spell out what was to be done if, for any reason, there had not been compliance by the specified time. In these circumstances there can be no question of any further breach, as alleged in the Solicitor General’s notice of application, by the mother’s failure to deliver up the children after 4pm on 12 October 2012 or, as alleged in the application, any continuing breach thereafter until 17 October 2012 when she and the children were found.

 

 

The President ruling therefore that mother could not have been in breach for not surrendering up the children AFTER 4pm on 12th October, as the order did not require her to do so.  So she was NOT in continued breach, and her actions in going on the run with the children wasn’t any part of the breach for which she could be committed. And she couldn’t be breaching the order by not delivering up the children BEFORE the deadline. That meant that the only possible breach was her not delivering the children to father’s care AT 4pm.

(So, she was possibly only in breach of the order for a minute, as by 4.01pm, the requirement on her had lapsed.)

22. The present case is a particularly striking example of the impossibility of reading in some implied term. What the order required the mother to do was to:

“deliver up the children into the care of the father … at Cardiff

Railway Station at no later than 4pm on 12 October 2012.”

Suppose that for some reason she failed to do that. What then did the order require her to do? Deliver the children to the father at Cardiff Railway Station or at some other (and if so what) place? And assuming it was to be at Cardiff Railway Station by what time and on what day? Or was she (to adopt the language of a subsequent proposed order) to return, or cause the return of, the children to the jurisdiction of the Kingdom of Spain by no later than a specified date and time? It is simply impossible to say. Speculation founded on uncertainty is no basis upon which anyone can be committed for contempt.

23.I do not want to be misunderstood. If someone has been found to be in breach of a mandatory order by failing to do the prescribed act by the specified time, then it is perfectly appropriate to talk of the contemnor as remaining in breach thereafter until such time as the breach has been remedied. But that pre-supposes that there has in fact been a breach and is relevant only to the question of whether, while he remains in breach, the contemnor should be allowed to purge his contempt. It does not justify the making of a (further) committal order on the basis of a further breach, because there has in such a case been no further breach. When a mandatory order is not complied with there is but a single breach: Kumari v Jalal [1997] 1 WLR 97. If in such circumstances it is desired to make a further committal order – for example if the sentence for the original breach has expired without compliance on the part of the contemnor – then it is necessary first to make another order specifying another date for compliance, followed, in the event of non-compliance, by an application for committal for breach not of the original but of the further order: see Re W (Abduction: Committal) [2011] EWCA Civ 1196, [2012] 2 FLR 133.

24.  It follows that the only question which properly arises on the present application is whether the mother was in breach of paragraph 2(b) of Hedley J’s order by reason of events down to 4pm on 12 October 2012.

At this point, one suspects that those bringing the committal application were beginning to quail. They probably considered that the mother was “bang to rights” but that sense of confidence was dissipating.

The next issue was then, whether the mother was actually flouting the order of Hedley J, or whether through forces beyond her control, she had been unable to comply with the order by getting to the train station at 4.00pm.

As luck would have it, before the mother had set off on the journey, the children had run away and the police were called and her departure was delayed, making it impossible for her to get to Cardiff train station by 4pm (or at worst, there being a reasonable doubt that it was impossible)

The Judge found therefore, that it was not proven to the criminal standard of proof that it had been physically possible for her to comply with the order to deliver up the children at 4pm, the mother had NOT breached that order, and that the order as drafted placed no obligation on her to do anything subsequent to 4pm (i.e she didn’t have to deliver the children to father’s care after that time), so the committal application had to fail.

It is therefore, a very important lesson in drafting terms in an order that might be enforced – one has to be clear what the mandatory obligation on the party is, and what the timescales for compliance are. Had the order been that mother must deliver the children to father’s care by 4pm on 12 October 2012 or in the event of that not being possible, that there was an obligation for her to deliver the children into his care at any time after and by the latest by 4pm on 19th October 2012, she might well have been in breach.

The events of 12 October 2012 – the facts

29. I turn at last to the central issue in the case: the close and careful scrutiny of the events of the crucial day, 12 October 2012. In fact, as I shall explain, the relevant inquiry focuses on an even narrower time-span: the period from 1.39pm to 2.56pm on the afternoon of 12 October 2012.

30. The unchallenged evidence of the mother, based on a Google printout, is that her home in Llanelli is 54.4 miles from Cardiff Railway Station, and that the journey by car along the M4 takes about 64 minutes. So, in order to get to Cardiff by 4pm they would have had to leave by 2.56pm at the latest. Also unchallenged was her evidence that she had arranged the loan of a friend’s 8-seater people carrier at 2.30pm to take herself and the four children to Cardiff and that, having herself packed the younger children’s luggage, at about 1pm she told the two older children to go upstairs to pack. At 1.37pm (the time is fixed by his mobile phone) Mr Williams received a telephone call from his daughter, who was driving past the house, to say that she could see Jessica on the flat roof outside her bedroom window and Thomas outside the house with his bag (apparently he had jumped down off the flat roof). Mr Williams went upstairs and pulled Jessica back into the house. She gave him the slip and ran out of the house and away with Thomas, Mr Williams in pursuit. He telephoned the police: the call was logged at 1.39pm. None of this is challenged by Ms Cumberland. So the crucial inquiry narrows down to the 77 minutes or so between 1.39pm and 2.56pm.

 

31. In relation to what happened during that period I am dependent in large part on the accounts given by the mother and Mr Williams. Both, as I have said, made witness statements and gave oral evidence. Their accounts can be summarised as follows: Mr Williams set off in pursuit, giving the police a running commentary on the phone: this is borne out by the police log. The children were found in the public library and collected by the police; the police log records them as being in the process of being taken back to the police station at 2.1pm. While they were being taken to the police station Mr Williams returned home and told the mother she was needed at the police station. Her friend Allyson Thomas took her there in her car. On her arrival – at about 2.30pm she thinks, perhaps a little earlier – she had to wait some time on her own. She then had a conversation with a police officer, who told her what the children had been saying. Only then was she able to see the children herself. Eventually they all returned home. A police log records at 4.59pm that they had left the police station “approx 1 hour ago” but the mother and Mr Williams think this is wrong and that they had in fact left somewhat earlier; the mother recalls her friend being anxious to get back in time to get her son to work by 4pm.

32. Having heard both of them giving evidence and being cross-examined, I accept this account as given by the mother and Mr Williams. They were, I think, being honest and doing their best to be accurate in what they said. Partly, this is a conclusion I arrive at having seen the way in which they gave their evidence. This was not some glib rehearsed account. The mother in particular was thoughtful, giving every appearance of trying to recall – to visualise – what had been happening that afternoon. Nor did she seek to put any kind of ‘spin’ on her account. If anything, quite the reverse. She did not seek to use the entry in the police log as showing that she had left the police station later than the time she recalled. And, significantly, she made no bones about the fact that as soon as she was reunited with the children in the police station she made it clear to them that they were not going back to Spain, nor about the fact that she repeated this to all the children at or soon after 4pm once she and the two older children had returned from the police station.

33. It is clear, both from her own account and from the police logs, that the mother told the police that she had to get the children to Cardiff by 4pm, and that she explained why. The police logs show that she was told it was a matter for her, and not the police. The mother’s account is that, whilst she was at the police station talking to the officer before being reunited with the children, he gave her an account of what they had told him and expressed his own opinion as being that Jessica was a danger to herself and others on the plane.

34. Apart from the police logs I have no account from the police of events at the police station. None of the officers gave evidence.

            Mr Hames submits that in these circumstances there is a clear answer to the critical question, Was it within her power to comply with the order, could she do it, was she able to do it? She could not. Through no fault of her own, and having made every effort to arrange a timely departure that would get them all to Cardiff by 4pm, the mother’s plans were frustrated: two of the children ran away, and whenever precisely it was that she left the police station it was on any footing well after 3pm, and probably nearer to 3.30pm – too late to get to Cardiff in time. As a fallback position, Mr Hames points out that it is for the Solicitor General to prove the case, and, moreover, to the criminal standard of proof. He submits that I simply cannot be sure that it was within the mother’s power to comply.

             

36. Ms Cumberland points to the mother’s frank admission of what she said to the children, to the fact that the mother, on her own account, made no effort to get the two younger children to Cardiff, and to the fact that, again on the mother’s own account, by shortly after 4pm she had embarked on a course of conduct that, far from trying to make alternative arrangements with the father, led to them all going on the run.

37. I can see the force of what Ms Cumberland says, and cannot help thinking that the mother has, quite fortuitously, been able to take advantage of two things that are unlikely to re-occur: one the serendipitous happenstance that the children ran away; the other that nothing which happened after 4pm is capable of being a contempt of court. So I have to come back to the critical question: Was it within the mother’s power to get the children back home from the police station in time for them all to leave for Cardiff no later than 2.56pm? Ms Cumberland says that it was: no-one had been arrested, everyone was free to leave the police station whenever they wished, and in any event there was nothing going on in the police station that would have prevented the two younger children being taken to Cardiff.

38. At the end of the day I am concerned with what is essentially a question of fact arising in most unusual circumstances. I have to put myself in the mother’s shoes as she is in the police station during the half hour or so between her arriving there at about 2.30pm and the time – 2.56pm – by which she has to leave for Cardiff. Two of her children have run away and been taken by the police to the police station. She has to wait, before receiving worrying information from the officer and only then being able to see her children. However the lawyer might subsequently analyse what had happened, the reality is that the mother was, metaphorically if not literally, in the hands of the police and having to work to their timetable. It is far from clear on all the evidence that the mother had been reunited with the children by 2.56pm – perhaps, but then perhaps not – and on that fact alone, in my judgment, the Solicitor General fails to prove his case.

 

Standing back from the detail, it is for the Solicitor General to prove that, as events worked themselves out on the afternoon of 12 October 2012, it was within the mother’s power to leave Llanelli by 2.56pm so that she could get the children to Cardiff Railway Station by 4pm. In my judgment he has failed to do so. The application must accordingly be dismissed

[Postscript - this is yet another one of those cases where a hugely important point was being litigated and the party did not obtain public funding. The mother was represented by pro bono counsel, who probably kept her out of prison, and hence at least some of her children still with her. The President spoke out afterwards about how unacceptable it is that such important issues are litigated relying on good will of lawyers acting for free.  http://www.lawgazette.co.uk/news/family-judge-criticises-reliance-free-representation  ]

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